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1898 Australasian Federation Conference
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[Continue page 1865]

FRIDAY, 4TH MARCH, 1898.

Petitions: Appeals to the Privy Council-Days of Meeting-Commonwealth of Australia Bill.

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

PETITIONS.

APPEALS TO THE PRIVY COUNCIL.

Sir GEORGE TURNER (Victoria) presented a petition from the Melbourne and Metropolitan Board of Works praying that the Convention would preserve the right of the Queen's Australian subjects to appeal to the Privy Council, and moved that it be received and read.

The motion was agreed to.

The CLERK read the petition, as follows:-

To the Right Honorable the President and the Members of the Australasian Federal Convention, in session » assembled.

The petition of the Melbourne and Metropolitan Board of Works humbly sheweth-That your petitioner is a body corporate created by Act of the Parliament of Victoria, composed of representatives elected by the councils of the city of Melbourne and the municipal councils of the other 23 cities, towns, boroughs, and shires of the metropolis of the said colony, which comprises an area of about 160 square miles, with a population of more than 451,000, who will be responsible for rates to be levied by your petitioner.

That the principal duties assigned to your petitioner are to manage and extend the water supply of the said metropolis, and to undertake the sewering and draining thereof.

That in relation to the former of the said duties your petitioner is charged with liability to the Government of Victoria for a sum of £2,359,156, the balance of money lent for construction of the waterworks by creditors who are mostly resident in Great Britain. And for extension of the said works, and to sewer and drain the metropolis, your petitioner has borrowed £3,893,580 upon debentures, the holders of a large proportion of which reside in the United Kingdom.

That your petitioner will need to borrow upwards of another million of money for completion of the work now in hand, and will need to borrow successive millions at recurring intervals hereafter to meet the obligations so entered into.

[start page 1866] That in expending the money so borrowed, and the revenue from water supply, your petitioner has entered into very many contracts and engagements with individuals and firms in this colony, New South Wales, and England. That those obligations, contracts, and engagements have been entered into with the mutual knowledge and confidence of both parties that, in the event of litigation arising out of them, recourse for the final settlement thereof could be had to the highest tribunal of the empire, Her Majesty the Queen in Council.

That, as your petitioner is informed, and believes, it has been decided by your honorable body that by the Bill for federating the Australasian colonies, which is under consideration, such right of appeal to the Sovereign shall be abolished.

That, as your petitioner respectfully submits, such abolition, if enacted and made law, would seriously derogate from the existing rights of creditors and contractors with your petitioner on the one hand, and of your petitioner on the other, and would materially weaken the credit and put a difficulty in the way of your petitioner when floating loans in the United Kingdom, as it will be necessary for your petitioner to do hereafter.

That apart from the aforesaid considerations, in so far as your petitioner represents and can speak for the inhabitants of the metropolis, your petitioner respectfully submits that to take away the right of Her Majesty's subjects in Australasia to appeal to Her Majesty is to break a connecting link between Australasia and the mother country, and that the binding of the Australasian colonies together does not necessitate, and ought not to be made the occasion for, in any way, unbinding Australasia from England.

Your petitioner, therefore, humbly prays that your honorable body will be pleased to reconsider the question of the Highest Court of Appeal and to strike out of the Bill for federating certain of the Australasian colonies the clause which would deprive Her Majesty's subjects in Australasia of the right of appeal to Her Majesty.

And your petitioner will ever pray.

Mr. WISE (New South Wales).-I cannot, as a member of the Judiciary Committee, allow that petition to pass without calling attention to its inaccuracy.

The PRESIDENT.-I do not think this is the occasion on which to discuss the petition.

Mr. WISE.-Not as a matter of privilege?

The PRESIDENT.-The motion was that the petition be received and read. It has been read.

Mr. WISE.-Until a petition is read we do not know what is in it. There is a statement in this petition which is manifestly incorrect.

The PRESIDENT.-There will be an opportunity of discussing the petition when the matter comes up in committee.

Mr. WISE.-Am I in order in moving that the petition be printed?

Sir JOSEPH ABBOTT (New South Wales).-I would submit that the honorable member is not in order, because a petition is printed as a matter of course. At any rate, it is so under the New South Wales standing orders.

The PRESIDENT.-It is not so in this Convention. The standing orders of the House of Assembly of South Australia provide that notice must be given of a motion for the printing of a paper unless the motion is moved by a Minister. If the honorable member desires to move that this petition be printed he must give notice.

Mr. FRASER (Victoria) presented petitions from the Incorporated Institute of Accountants, Victoria; the Victorian Division of the Society of Accountants and Auditors Incorporated, England; and the Accountants and Clerks Association Limited, praying the Convention to preserve the existing right of the Queen's Australian subjects to appeal to the Privy Council, and moved that they be received.

Mr. WISE (New South Wales).-Before that motion is put, I should like to ask the Hon. Mr. Fraser whether these petitions contain a statement similar to that in the last petition-namely, that the Convention has abolished appeals to the Privy Council?

Sir JOSEPH ABBOTT (New South Wales).-I would submit that the honorable member has no right at this stage to interrogate any honorable member who [start page 1867] presents a petition. That would practically allow the honorable member to make certain statements. Standing Orders No. 104 and 105 have reference to the manner of dealing with petitions. Standing Order No. 105 says-

No member shall move that a petition be printed unless he intends to take action upon it, and informs the House thereof.

If the honorable member is allowed to ask the Hon. Mr. Fraser questions, he is practically permitted to initiate a debate.

The PRESIDENT.-I think the honorable member is in order. He can speak to the question that the petition be received, and in so doing he may ask any honorable member a question.

Mr. WISE (New South Wales).-Then I object to the petition being received, and I shall take the same course, if the Convention approves, with regard to all petitions in this form. I do so on the grounds that the petitions misstate what has been done by the committee. They declare that the Convention has abolished the existing right of the Queen's Australian subjects to appeal to Her Majesty in Council, and the expression is used-"The effect of depriving Australians of this right of approach to the Sovereign." I am not going to initiate any debate, but honorable members know that it is an utter misconception of the work of the Convention to say that we have abolished appeals to the Privy Council. No such thing has been done.

Mr. FRASER.-What have we done?

Mr. WISE.-All we have done is to say that there shall be no appeal as of right, but the prerogative appeal will continue almost if not entirely as heretofore. To say that the right of appeal has been abolished is to state what is not the fact. If the Bill becomes law, matters will practically be left in the same state as in Canada. That is to say, the Queen in, Council will herself give permission to appeal in all cases of public importance.

Sir JOHN FORREST.-Between states.

Mr. WISE.-And in all cases between states. The Queen and the Privy Council will have the right of interpreting the phrase "public importance," as they have done in regard to appeals from the Dominion of Canada. It is, I have no doubt, unintentional, but it is a complete misstatement and misconception of what has been done to say that the right of appeal to the Privy Council has been taken away. Sir John Forrest interjected that the appeal under the Bill would only apply to cases between states. That is not so. It will apply to questions between states raised at the instance of citizens, and to suits between citizens. In using the words "public importance" the Judiciary Committee have tried to adopt the language of the Privy Council itself in determining what appeals shall be allowed from the Dominion of Canada. It is a misconception that would be injurious to the future of the Bill, if it were allowed to pass, and if it were tacitly acquiesced in by a petition like this being received, that appeals to the Privy Council have been abolished. I object, therefore, to the petition being received.

Sir JOSEPH ABBOTT (New South Wales).-It would be very wrong if the honorable member were allowed to take a course such as this with regard to petitions that are respectfully worded. Whether the petitions are erroneous or not with regard to the statements contained in them, I do not think it is at all usual, if the petitions are framed in proper and respectful language, to comment upon

their contents, and the honorable member is only doing that for an ulterior purpose. Everything the honorable member has said now he could say on the debate with regard to the clauses, and on a more fitting occasion.

Mr. WISE.-I wish to correct a misapprehension as soon as possible.

Sir JOSEPH ABBOTT.-The honorable member wants to get some statements into the press, which I have no hesitation in saying are, in my opinion, [start page 1868] absolutely incorrect. The statement of the honorable member that the right is not taken away by the Bill now before the Convention, so far as I can judge, is incorrect. It may be his opinion that that is not the case, but it is not the opinion of people outside who are deeply concerned in this question.

Mr. WISE.-I want to remove a misapprehension.

Sir JOSEPH ABBOTT.-The honorable member has no right to interrupt me.

Mr. WISE.-I rise to order. The honorable member has, unintentionally no doubt, imputed to me an ulterior purpose. I desire to be allowed to make reference to that.

The PRESIDENT.-Does the honorable member object to the words as offensive?

Mr. WISE.-Yes, unless the honorable member allows me to make an explanation.

The PRESIDENT.-The honorable member cannot make an explanation to interrupt an honorable member who is in possession of the Chair. When the honorable member states that the words are offensive, no doubt Sir Joseph Abbott will qualify them.

Sir JOSEPH ABBOTT.-I am exceedingly sorry that the honorable member is so sensitive.

Mr. WISE.-I am not going to be misrepresented by anybody.

Sir JOSEPH ABBOTT.-I must appeal to you, sir, to keep this unruly member in order. Every honorable member addressing himself to the Convention under parliamentary rules, as the honorable member knows, is to be heard without interruption, and I think gentlemanly instincts ought to lead honorable members to listen to one another without interruption. The honorable member has made a statement, and he takes exception to my charging him with having done so for an ulterior purpose. If that word "ulterior" is offensive to him in any shape or form, I will withdraw it. But I cannot imagine for what purpose, except that it might have an effect hereafter upon the public mind, the honorable member took this extraordinary course of objecting to the petition. The honorable member stated that no right which exists at present has been taken away.

Mr. WISE.-I did not.

Mr. SYMON.-The honorable member did not say that.

Sir JOSEPH ABBOTT.-The honorable member said that every right which subjects now had was retained in this Bill.

Mr. SYMON.-He did not say that.

Mr. WISE.-I must ask leave to correct.

The PRESIDENT.-The honorable member will have an opportunity of explaining afterwards, if he wishes.

Mr. WISE.-Am I not at liberty?

HONORABLE MEMBERS.-Chair!

The PRESIDENT.-Order.

Sir JOSEPH ABBOTT.-The honorable member takes a most unusual course. Evidently he wants to prolong the sitting of this Convention unreasonably. This extraordinary exception that he has taken to the petition might have been dealt with hereafter, at the proper time, and in the proper place. Whatever the honorable member said, the impression left upon my mind, and upon the minds of Sir William Zeal and Mr. Fraser, who are not novices in parliamentary law, was that the honorable member said that practically nothing was proposed to be taken away from the subjects of the Queen in this Bill.

Mr. FRASER.-That is what I understood.

Sir JOSEPH ABBOTT.-If the honorable member refers to clause 75, he will see that it provides: No appeals shall be allowed to the Queen in Council from any court of any state, or from the High Court or any other federal court, except that the Queen may, in any matter in which the public interests of the Commonwealth or of any state or of any other part of her dominions are concerned, grant leave to appeal to the Queen in Council from the High Court. The honorable member tried [start page 1869] to make out that these interests were the interests of the inhabitants of the state. That is absolutely true as a collective body, but as individuals it is absolutely incorrect to make such a statement. The honorable member knows well enough that under clause 75 the subject will have no right of appeal whatever. The state matters which affect the interests of the Commonwealth, or affect the state and not the individual, will be the subject of appeal.

Mr. SYMON.-But they affect the individual and the state.

Sir JOSEPH ABBOTT.-Again I would appeal to my honorable friend to bear in mind that it is disorderly for him to interrupt any honorable member who is addressing the Chair.

Mr. SYMON.-I think the honorable member is very disorderly.

Sir JOSEPH ABBOTT.-The honorable member invariably interrupts everybody who disagrees with him.

Mr. SYMON.-I rise to a point of order.

HONORABLE MEMBERS.-What is the point of order?

Mr. SYMON.-That being the most good-natured and least interrupting member-

An HONORABLE MEMBER.-That is not a point of order.

Mr. SYMON.-The point of order is, that the remarks of the honorable member are not according to fact, and they are offensive, and ought to be withdrawn.

Sir WILLIAM ZEAL.-That is no point of order.

The PRESIDENT.-I call attention to the fact that the remark referring to Mr. Symon has been objected to as offensive. I should like to call the attention of honorable members generally to the fact that it is not usual to debate these matters at length. There will be an opportunity later on of doing so.

Sir JOSEPH ABBOTT.-I am quite prepared to allow the matter to drop, but I say the course which has been taken has been very exceptional, and a course which I have never known to be taken in another place, during eighteen years that I have been there, with regard to petitions. Mr. Wise says he has no ulterior object. He said the word "ulterior" was offensive. As he had no ulterior object, he had no right to make the remarks he did.

Mr. SYMON (South Australia).-I very greatly regret that at this early stage-

Sir RICHARD BAKER.-I rise to a point of order, that is, that the discussion is altogether irregular. I will point out what May lays down on the practice with regard to petitions. Our standing orders 104 and 105 do not contain explicit words stating whether or not the question can be debated on the motion that the petition be received, but that is the practice, and that practice is in pursuance of the practice of the House of Commons, which is referred to in the following words by May:-

It will be observed that although the standing orders restrict debate to urgent cases (this is in reference to petitions), that restriction does not extend to a petition complaining of a matter affecting the privileges of the House, such a case being governed by the general rule that a question of privilege is always entitled to immediate consideration. But if the matter does not demand the immediate interposition of the House the course would be to appoint by order that the petition be taken into consideration on a future day, and be printed for the information of the House.

And, then, May goes on to lay down the practice that when a notice of motion is given, and the motion comes on that the petition be printed, the matter can be debated. I submit that at the present time this debate is out of order.

The PRESIDENT.-I should be very glad to rule in favour of the point raised by Sir Richard Baker, but I do not think that our practice permits of it. I think that the motion which has been moved, that the petition be received, is open to debate; but still, at the same time, I would again venture to remind honorable members that there will be no opportunity of discussing this matter. [start page 1870] Our time is short; there has been a speaker on each side of the question, and probably that will induce an early conclusion of the debate.

Mr. SYMON.-In deference-

Sir WILLIAM ZEAL.-Oh, oh!

Mr. SYMON.-Why should Sir William Zeal, who is the greatest sinner in respect of interruptions, interfere on this occasion? We bear with him as long as we can.

Sir WILLIAM ZEAL.-I do not want you to bear or forbear.

Mr. SYMON.-I was going to say, in deference to the indication you, sir, have given, that I shall not continue the remarks I intended to make. I simply wish to deprecate, at this stage, the introduction of heat into a matter which is one purely of constitutional arrangement. I would deprecate, also, the fact that my honorable friend who has just sat down is more responsible than any other honorable member of this Convention for introducing heat into the discussion. I may say that I mean Sir Joseph Abbott. I heard him trying to fix the blame on Sir Richard Baker.

Sir JOSEPH ABBOTT.-My honorable friend should not be a listener.

Mr. DEAKIN (Victoria).-In order to save time, I beg to present petitions which, I believe, are worded in the same language as the last petition. One is from the Victorian Chamber of Manufactures, a second from the Society of Notaries of Victoria, a « third » from fifteen or twenty insurance companies, underwriters' companies, and other companies with foreign relations, and a fourth from the Cambrian Society.

Sir GEORGE TURNER (Victoria).-I beg to present similar petitions from the Melbourne Chamber of Commerce, the Melbourne Chamber of Mines, the Geelong Chamber of Commerce and Manufactures, the Federal Institute of Accountants, the Incorporated Royal Victorian Institute of Architects, and the Victorian Licensed Victuallers' Association.

Sir WILLIAM ZEAL (Victoria).-I beg to present similar petitions from the Victorian Employers' Union, the Pastoral Association of Victoria and Southern Riverina, and the Melbourne Wool Brokers' Association.

The petitions were received.

DAYS OF MEETING.

Sir JOHN FORREST (Western Australia).-I should like to ask our leader whether it would not be possible for us to sit on Saturdays, and also every evening in the week? It has always appeared to me since I have been here that, seeing we have Sunday to ourselves, it is a great mistake to adjourn over Saturday. I would have moved this motion long ago if I had followed my own wishes. I think our labours have been so prolonged that we certainly ought to sit on Saturday, and I would be very pleased if we could sit every evening in the week as well. I ask for an expression of opinion from my honorable friend, but I do not propose to make any motion. I ask him to give the matter consideration.

Sir RICHARD BAKER (South Australia).-I join with Sir John Forrest in the remarks he has made. There is no one on whom the work will tell harder than on myself, but at the same time I am quite content to sit every night and on Saturday in order that we may finish this work.

Mr. BARTON (New South Wales).-I am quite alive to the extreme necessity that exists for the Convention to give every possible attention to its work. I am rather of opinion, however, that the Convention has worked very hard. It might be possible to sit every night next week, but I should certainly be an objector to sitting on Saturday. I do not think some honorable members can realize the work cast on other honorable members and the officers of the Convention. I think, if they did realize it, they would see that [start page 1871] there must be a small hiatus in the work of the week. There must be some rest on Saturday, and it is very wearying work for those who have duties outside their mere work at this table or on these benches to be expected to sit every night. The work which has been done in connexion with the Convention by some of us is very much harder than anybody supposes. I really do think that some consideration must be given to the fact that if the work is to be effective it must be done well. If it is to be done well, there must be time to do it. As far as I am concerned, I shall oppose any sitting on Saturdays. So far as the officers of the Convention are concerned, they must have a day on which to keep up the work. There is a vast deal of work to be done in connexion with the Convention, particularly in relation to the Printing office, and it must be done at times when the Convention is not sitting. At the same time, a great deal of that work has to be done while the Convention is sitting. A great deal of work has to be done when the Convention rises. If the officers do not have Saturday to do some of the work it will be impossible to keep up with it, and, indeed, they ought to be entitled to a rest on Saturday. It involves sitting into the small hours every morning after the Convention has ceased sitting. I do not think that the Convention, as a matter of humanity, ought to ask anything of that kind to be done. Very hard work is being done for this Convention by the officers; I need not speak of any work that is being done by others. It is too much to ask this Convention to sit on Saturdays as well as five days and two nights a week. Up to the time of Sir John Forrest's departure, I shall be content to sit on Monday, Tuesday, and Wednesday next week.

Sir JOHN FORREST.-I have to go on Wednesday.

Mr. BARTON.-I cannot help saying that I think we ought to lay before ourselves, as Sir Richard Baker said the other day, the paramount claims of this Convention upon our attendance.

Mr. GLYNN.-It was the same way at Adelaide; they wanted to clear off.

Mr. BARTON.-I do not think that any necessity arising in any particular colony justifies any of us in departing from this Convention and its sittings unless it is of so pressing a character that great damage would be done to our particular colony by our absence from that colony. If such a case occurs, well and good; but if such a case does not occur, then the trouble of the whole matter should not be shunted on to the Convention. That is the position I hold in regard to it, and I hope my right honorable friend (Sir John Forrest) who, I know, has the work of this Convention at heart, may be able to persuade himself to stay until Wednesday week. There is no member of the Convention we are more glad to see on these benches, and there is no more popular member of the Convention.

Mr. DEAKIN.-And nobody we shall miss more.

Mr. BARTON.-I am sure we shall all miss him, and we are very anxious in completing our work to have his assistance. I therefore hope he will see his way to remain. For myself, I shall not be able to speak with the force and effect with which my right honorable friend has hitherto enabled me to speak by his running fire of interjections. I shall miss him extremely if he takes his departure before we have concluded our labours. I hope, therefore, that he will stay. I will not ask honorable members to sit to-morrow, but I will ask them to sit every night next week, that is, on Monday and Tuesday, and, if necessary, to-night.

Sir GEORGE TURNER.-Honorable members have made arrangements on the understanding that the Convention would not sit tonight.

Mr. BARTON.-So have I; but if it be necessary to sit to-night I must disappoint my friends.

[start page 1872] Sir JOSEPH ABBOTT (New South Wales).-I intended to give notice that I will move on Monday next-

That, unless otherwise ordered, the Convention shall sit each day for the future from half-past seven p.m. to half-past ten p.m.

Mr. BARTON (New South Wales).-I ask my honorable friend not to give notice of that motion, and I will tell him why. It is perfectly competent for the Convention to sit every night. The only order on the minutes with reference to our sittings is that we shall meet every day at half past ten o'clock a.m. We can adjourn at what time we please. So that, without Sir Joseph Abbott's motion, we can sit every night in future if we see fit to do so. The only object of proposing such a motion, therefore, would be as a direction to myself, and there is no necessity whatever for that, because I am entirely in the hands of the Convention.

Sir JOSEPH ABBOTT.-Under these circumstances I. certainly shall not give notice of the motion.

COMMONWEALTH OF AUSTRALIA BILL.

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-

Clause 52, sub-section (12).-Fisheries in Australian waters beyond territorial limits; and on Mr. Barton's amendment-

That the sub-section be amended by the insertion, before "fisheries," of the word "Sea"; and the omission of "beyond territorial limits."

Mr. O’CONNOR (New South Wales).-I do not think that anybody can doubt the absolute correctness of the criticism of the leader of the Convention upon the words of sub-section (12) as they stand in the Bill at the present time, as a matter of law. But the debate on this question has satisfied me that there are many practical reasons why those words should remain unaltered. I am sure Mr. Barton only expressed his opinion of the words themselves, and that be has no very great wish either one way or the other. I will state briefly why I think sub-section (12) should remain as it stands. We have, over and over again in this Convention, shaped our course by considerations as to the practical condition of things. It may be that the words in question are vague, but we find in exactly the same words a distinction, accurate and definite, of the sphere within which this jurisdiction has been already adopted in some Acts passed by the Federal Council, which have been in force for over ten years. During those ten years the fisheries of Western Australia and Queensland have been controlled by those two colonies respectively, and those colonies have exercised very important duties in regard to the fisheries in question. I take it that we shall wish, as far as possible, in regard to all matters handed over to us that we should occupy the place of the Imperial Government, and be able to assure Queensland and Western Australia that we will not derogate from their power of dealing with these matters. Now, although we have preserved, by an early clause in this Constitution, all rights existing under Acts passed by the Federal Council, there would be a danger to those rights if those laws could be amended or dealt with in any way. Interests have grown up, these spheres of influence have been actually used, and the laws of these colonies have been brought to bear on them. Therefore, I think it would be undesirable, by altering the wording of this Act, to throw any doubt on the exercise of that jurisdiction. There is another view, and I think a rather important one. No continent such as ours could ever exist without having around it some right of control over waters outside the ordinary territorial limits for some distance from the coast, in the same way as rights have been claimed over fisheries off Newfoundland, and other parts of the [start page 1873] world as being appendant to the ownership of the continent. It is only proper, as we are beginning now, as representing the empire here, that any right of control over these waters, no matter how far from the coast, should not be abandoned, as it will be necessary for us. As by-and-by, this continent will become a sovereign State, as it must some day, although remaining a part of the British Empire, it is necessary for us now to see that we begin to lay out what we think will be that sphere of operation and influence round about this Continent of Australasia which we will require in the time to come and which we are beginning. to require now. Therefore, from the point of view of Imperial interests handed over to us in this matter, I do not think we ought to abandon one jot of what we have acquired already. To show that this is the true description of the state of the case, I may point out that Western Australia goes 600 miles from the coast at the furthest point, and 300 miles from the coast at the nearest point, and extends her control right round the coast of that colony. Queensland's sphere extends from the southern point of Queensland away north to a considerable distance, and embraces a number of islands along the coast within the area of which these profitable sources of revenue to the colonies exist. Although I think that the criticism of Mr. Barton is perfectly justified, being brought face to face with the practical condition of things, I think we ought to leave subsection (12) as it stands.

Mr. SYMON (South Australia).-I am very glad Mr. O'Connor has decided that it is better to retain the words of sub-section (12) of clause 52. The words as they stand may lead to the result that Mr. Barton indicated last evening, in seeming to give a power of legislation which would interfere with international law and affect foreign vessels or peoples engaged in these fisheries. But the provision in sub-section (12) which we wish

to retain will always be subject to inter-national rights, whatever they may be, and, therefore, no confusion can possibly result from legislation. There are many conceivable cases in which we would not be able to exercise that control over crews and ships in Australian waters under the ordinary laws of navigation and shipping, unless we had some such provision as this. I think these words will be very effective and useful, and they have already been adopted and acted on.

Sir JOHN FORREST (Western Australia).-I am very glad, too, that Mr. O'Connor has decided that it is better to retain the words of sub-section (12), and I thank him for the assurance be has given us on the question. I am aware of the narrow view-the legal view-of this matter, but I am glad Mr. O'Connor takes a broader and more Imperialistic view of this question. I think we should retain all we have got, and get as much more as possible. This continent of ours belongs to Great Britain, and the waters around it, at any rate, should be within the influence of the British Government. Therefore, I am very glad indeed that Mr. O'Connor has consented to allow these words to remain in the Bill.

Mr. BRUNKER (New South Wales).I am very pleased indeed that the reconsideration of this matter will lead to a concession which, I think, will prove to the advantage of all the colonies. When I made a suggestion in regard to this matter last night, I was not aware of the privileges that had been conceded to Western Australia, but since then I find that, in the Act dealing with this matter of the fisheries, the following words occur:-

And whereas vessels employed in such fishery are, in the prosecution of their business, sometimes within and sometimes beyond the territorial jurisdiction of Western Australia.

I suggested last night that, seeing that this concession was made to the Federal Council, there is no reason why it should [start page 1874] not be made to the Federal Parliament. I am very pleased indeed that we have come to a decision which we all approve.

The amendment was negatived.

Sub-section (12) was agreed to.

Mr. O’CONNOR (New South Wales).-I beg to move the insertion of the following new sub-section:-

The acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws.

Some question has been raised as to whether the Commonwealth has the power inherently of acquiring property under just terms of compensation; that is to say, whether it is not driven to bargain and sale only. It is quite clear that there must be a power of compulsorily taking property for the purposes of the Commonwealth.

Mr. FRASER.-Certainly.

Mr. O’CONNOR.-And this clause is framed to provide for that.

Mr. FRASER.-Are the terms to be stated?

Mr. O’CONNOR.-No, you do not want to state the terms in the Constitution. Of course an Act will have to be passed by the Commonwealth Parliament elaborating this enactment, and no doubt proper provision will be made in that Act for the method of acquiring lands, and the mode in which lands shall be obtained for the purposes of the Commonwealth.

The new sub-section was agreed to.

Clause 52, as amended, was agreed to.

Clause 53, subsection (2).-The government of any territory which, by the surrender of any state or states, and the acceptance of the Commonwealth, becomes the seat of government of the Commonwealth, and the exercise of like authority over all places acquired by the Commonwealth,

with the consent of the state in which such places are situate, for the public purposes of the Commonwealth.

Mr. O’CONNOR (New South Wales).-I beg to move-

That the words from "with the consent of the state in which such places are situate" (line 7) be struck out.

The object of this amendment is to put in the most general possible terms the purposes of the clause. The clause gives a right of government for certain purposes to the Parliament, and it is just as well that it should be stated in such general terms that it will not be possible that any purpose which we do not think of now will be omitted.

The amendment was agreed to.

The sub-section, as amended, was agreed to.

Clause 56B, paragraph (1).-If the House of Representatives passes any proposed law, and the Senate rejects the same, or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if the Governor-General thereupon dissolves the House of Representatives, and if, within six months after such dissolution, the House of Representatives, by an absolute majority, again passes the proposed law, with or without any amendments that may have been made or agreed to by the Senate, and if the Senate again rejects the proposed law, or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate.

Mr. BARTON (New South Wales).-The amendment on the paper to be moved at this point is-

That paragraph (1) of clause 56B be omitted.

But I should like to mention that this is particularly an amendment of substance. It is a proposal to omit from the dead-lock clause the portion which was carried at the instance of Mr. Symon, in Sydney, leaving the rest of the clause to stand. Now, I stated yesterday, when we were discussing the propriety of taking this list of recommittal amendments, that so long as I had the right of moving amendments of substance at the second recommittal stage, I did not wish to force on the attention of the committee at this stage any matter which would occupy any great length of time. Therefore, I am in the hands of the committee with regard to this, as with regard to other matters of considerable substance. I think we are all agreed that this dead-lock provision [start page 1875] will take some time to discuss, and perhaps it will be more convenient if I do not move this amendment now. But I should like to ask the Chairman whether I can retain my right of moving it at the second recommittal stage?

The CHAIRMAN.-Certainly.

Mr. BARTON.-Then, if it be the wish of the Convention, I will not move the amendment now.

Clause 73 (Extent of judicial power),

Mr. BARTON (New South Wales).-I beg to move-

That the following sub-section he inserted as subsection (7):-

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

This, Mr. Chairman, is an amendment of substance, but the discussion of it ought not to occupy very long. It will be remembered that in the former committee this sub-section was left out. Now, I have come to the conclusion that it was scarcely wise of us to leave it out. The clause is that which States-

That the judicial power of the Commonwealth shall extend to all matters;

and then follows a list of the matters, of which sub-section (7) was one. I proposed in the former committee to make it apply to matters in which an injunction is sought against an officer of the Commonwealth, but ultimately the sub-section was left out, on the ground that the proceeding could probably be taken without any express power being given for them. I am under the impression that we came to rather a hasty conclusion upon that matter, and that it would be advisable to restore these cases of judicial power. The question would be this: Whether without an express authority given in the Constitution to entertain such cases the High Court could grant a writ of mandamus or a prohibition or an injunction against an officer of the Commonwealth? Ordinarily speaking, any such proceeding as amounts to a proceeding against the Crown cannot be taken without an express Act to authorize it. A matter came before the Supreme Court of the United States, and there was a decision by the very high authority of Mr. Justice Marshall, which will help us to come to a conclusion whether we should retain these words or not. In the case of Marbury v. Madison, and in other cases, the following was the decision:-

It is only such Acts of Congress as are within the scope of their powers as conferred by the Constitution that became the supreme law of the land. Where such Acts are in violation of the Constitution, it is the province of the courts of the United States to declare the law void and refuse to execute it. The final appellate power upon all such questions is in the Supreme Court of the United States.

What happened in that case was that the United States Congress, without having this right of entertaining cases of mandamus or prohibition against an officer of the United States, had passed an Act upon the subject; but, inasmuch as the Constitution did not place in the hands of the High Court the power to entertain these questions, it was held that an Act of Congress giving power to entertain them was not within the powers conferred by the Constitution, and was therefore a void Act. So that the power was not exercisable. The principle on which the whole matter rests is laid down in another case.

Mr. KINGSTON.-Does it remain so still?

Mr. BARTON.-So far as I am aware. I do not know that there has been an amendment of the United States Constitution to that effect. In the case of The Board of Liquidation against McComb, it was laid down that-

A state without its consent cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter.

Then there is a statement as to the granting of a mandamus:-

But it has been well settled that when a plain official duty, requiring no exercise of discretion, is to be performed, and performance is refused, any person who will sustain personal injury by [start page 1876] such refusal may have a mandamus to compel its performance; and when such duty is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it. In such cases the writs of mandamus and injunction are somewhat correlative to each other. In either case if the officer plead the authority of an unconstitutional law for the non-performance or violation of his duty, it will not prevent the issuing of the writ. An unconstitutional law will be treated by the courts as null and void.

The courts there declared to be null and void an unconstitutional law passed by the United States Congress to give such power. Consequently, it seems to me that it might be held here that the courts should not exercise this power, and that even the statute giving them the power would not be of any effect; and I think that, as a matter of safety, it would be well to insert these words.

Mr. SYMON.-They cannot do any harm.

Mr. BARTON.-They cannot do harm, and may protect us from a great evil.

Dr. QUICK (Victoria).-I think the leader of the Convention has made out a good case for the re-insertion of these words, on the ground that without the sub-section in question the clause would have the effect of limiting the particular class of writs or remedies which it will be within the power of the Federal Court to administer. But I should like to ask, for instance, would the court have power not only with regard to the three writs specified in the sub-section, but would it have power to issue writs of certiorari to bring up writs and quash them, and would it have power to issue writs of habeas corpus against an authority which might improperly imprison a citizen of the Commonwealth? It seems to me that the Supreme Court would be limited to the three classes of writs, and would not have power to issue other writs which it might be desirable that the court should issue.

Mr. BARTON (New South Wales).-It is well determined that there is power to issue a writ of habeas corpus independently of words of this kind. That has been decided in America. It was decided that the right of a citizen to have the cause of his detention inquired into was clear; that the right of habeas corpus existed under the common law of England, and did not need any provision with regard to it whatever.

Sir JOHN FORREST (Western Australia).-I should like to ask whether this power could be exercised against a Governor of a state for any act of his? Would it include the Governors of states acting under Ministerial authority?

Mr. BARTON.-The Governor of the state is not an officer of the Commonwealth.

Sir JOHN FORREST.-Could it apply to Ministers of state or the Governor of a state?

Mr. BARTON.-No.

Mr. GLYNN (South Australia).-Upon this subject I should like to call particular attention to an article which appeared in the Law Times on the 13th February, 1897. The article deals with this very point of the right to issue a mandamus against a Governor. It was decided in the case of Marbury v. Madison that an injunction could issue as regards the state courts, and the writer complains of this as an interference by one department of the state with another. He says-

But following the doctrine of this decision, or rather, of this extrajudicial fulmination-for the court had really nothing to decide except its own want of jurisdiction-the state judicatures have, almost without exception, asserted the power to control the executive department of their state Governments in what are called Ministerial matters which do not involve the exercise of an exclusive discretion, by sending writs of mandamus to the heads of executive departments, and even in some instances to the Governor himself.

It is done, then, in America. There may be a slight distinction-one cannot answer questions of this kind on the spur of the moment-but it is a matter worth a little more consideration. We are putting it in [start page 1877] the power of the Federal Judiciary to interfere with the Federal Executive, which, in America, is complained of as an unconstitutional interference with the executive departments of the state.

Mr. KINGSTON (South Australia).-I hope we shall not hastily adopt this amendment, but that we shall have an opportunity of further considering it. I understand that Mr. Barton proposes to give to the Federal Court a power which the authorities cited by Mr. Glynn seem to declare would extend even to the executive acts and restrain the executive action of the Federal Government. That power is not possessed in America, and to confer it here, when the states have been able to do so well without it, seems to me to be a step we should not take, except after the most mature consideration. No doubt we have had this proposal on our files, but still it is a matter of such moment that I make the suggestion of delay.

Mr. BARTON.-What evil consequences can arise from it?

Mr. KINGSTON.-The clashing of the courts and the Executive. We should be sorry to implant in the Constitution a provision by which the federal courts would have any control over the executive acts. For the executive act of the Commonwealth the executive officers would be responsible to Parliament, which, no doubt, would see due regard is bad to all constitutional provisions. But if we specially provide for interference by the courts in federal matters, we will be giving to the High Court of Australia a power it is unnecessary that court should possess, and which might, at various times, be exercised to the very great detriment of constitutional government.

Sir JOHN FORREST.-It is not exercised in England.

Mr. KINGSTON.-No, and why should we put it in this Constitution? We have already put it within the power of the Federal Parliament, by express provision, to legislate so as to confer the right of proceeding against the Crown. That seems to me quite sufficient. To further embody in this Constitution a declaration that the Judiciary should interfere with the Executive, or that it should be within the judicial power to do so seems to me a retrograde step which cannot be defended.

Mr. SYMON (South Australia).-The apprehensions just laid before the Convention are, I think, not well founded. The provision will not in my view enable the Federal High Court or any court to interfere in any way whatever with the political Executive of the Federation. The provision does not confer, and is not intended to confer, and I am sure Mr. Barton will agree with me in this-any right whatever to interfere in such cases. It merely gives a jurisdiction.

Mr. BARTON.-Hear, hear.

Mr. SYMON.-Applications may be made now.

Mr. BARTON.-This proposal does not confer any right.

Mr. SYMON.-I was going to say that it does not confer any right. It is a safeguard, because it will prevent any application for mandamus or prohibition, both of which are prerogative rights, being made in any court except the courts invested with federal jurisdiction. The provision says that if you apply as against an officer of the Commonwealth-

Sir JOHN FORREST.-It might be against the Governor-General of the Commonwealth.

Mr. SYMON.-No, but supposing it is? I will take that position, and say that it does not give any right to get mandamus or prohibition.

Sir JOHN FORREST.-It is optional.

Mr. SYMON.-It is not optional. It merely gives a jurisdiction in certain applications.

Sir JOHN FORREST.-No.

Mr. SYMON.-Will my honorable friend pardon me? We have had applications in my own colony-I don't know that this has been the case in other colonies-for mandamus and prohibition directed against officers or a body constituted under the [start page 1878] Executive Government of the day, and the question has been raised whether or not that was an interference,. That was a case of seeking to proceed by mandamus for the performance of some act by the Executive through somebody to whom the control had been delegated. It is not provided that the right shall exist to get the mandamus or prohibition.

Sir JOHN FORREST.-It means nothing then?

Mr. SYMON.-Yes, it means a great deal. It means that no court, except the Federal High Court, or other courts under the Federal Constitution, shall have the power to entertain such an application. If this provision be not inserted, it follows that anybody who is discontented with something done by an officer of the Commonwealth in any state might apply to the court of the state for mandamus or prohibition. He might not get it, but be might apply for it, and there are cases in which be would get it. But if this provision be inserted the application would have to be made to the Federal Court. That, I take it, is a safeguard.

Mr. ISAACS.-Is this exclusive?

Mr. SYMON.-Yes, as to the officers of the Commonwealth.

Sir EDWARD BRADDON.-It is a limitation of the right of the people against the Crown.

Mr. SYMON.-No; it is not a limitation. All it says is that an application for mandamus or prohibition against an officer of the Commonwealth must be taken to the High Court or other of the Federal Courts. An application cannot be made to a state court, although the incident which brings the application about may happen in a particular state. The right to mandamus or prohibition is not conferred one whit more than at present. The provision merely throws within the ambit of the jurisdiction of the federal tribunal the right to determine the question. That question will be determined by the ordinary law of England-by the principles of constitutional government and the prerogatives of the Crown. There have been prohibitions and writs of mandamus granted against officers of the Crown in England, as well as in other places, where the officer has not been exercising an executive discretion, but where he has been what might be called a conduit pipe through which money ought to pass from the Treasurer or some fund to the intended recipient. If an officer has not paid that money over, application may be made for a writ of mandamus to compel him. But it is not necessary to discuss these things now. The only question is whether the proposal confers a right on anybody, no matter what the circumstances or whether the application impinges on the prerogative, to obtain a writ of mandamus or a prohibition against an officer of the Crown. The provision has not that effect at all. It is a safeguard and a limitation. It prevents an officer of the Commonwealth, whether Minister or anybody else, from being proceeded against in any state, in regard to the Commonwealth.

Sir JOHN FORREST.-I should say it would be a very cumbrous and undesirable method.

Mr. SYMON.-It would be very cumbrous and undesirable if an officer of the Commonwealth could be proceeded against in a state court.

Sir JOHN FORREST.-In the colonies now, I think writs of mandamus are issued to prevent officers doing certain things.

Mr. BARTON.-A mandamus is issued to compel the performance of a plain official duty laid down in an Act of Parliament.

Sir JOHN FORREST.-I know the court interferes with officers of the Crown to compel them to do certain things. Prohibitions are common enough, even in the colony I come from.

Mr. SYMON.-My honorable friend (Sir John Forrest) will see that the proposal before the Convention would not interfere in any way with the proceedings he has mentioned. Whatever [start page 1879] jurisdiction the state courts have now in regard to writs of mandamus and to prohibitions against officers of the state will remain. All the provision says is that writs of mandamus and prohibitions against officers of the Commonwealth shall be within the jurisdiction of the Federal Court. The point that my honorable friend. (Dr. Quick) has referred to is one worthy of the attention he has given to it. The distinction is that writs of mandamus and prohibitions are prerogative rights, and these other cases are not.

Dr QUICK.-Is not habeas corpus a prerogative right?

Mr. SYMON.-It is not a prerogative right.

Mr. ISAACS.-You will have to put all sorts of other things in the provision.

Mr. SYMON.-I think not. I doubt whether it is necessary to introduce the reference to an injunctions but still there is no harm in saying that the only court having jurisdiction to deal with injunctions against officers of the Commonwealth shall be the Commonwealth Court. That was the object of the provision; at any rate, it was the sole object that the Judicial. Committee had in view in inserting it in the first instance. When the time came to, revise the provision, some honorable members seemed to doubt whether it ought to be there, and it was eliminated. Second thoughts are the best, and I think the provision ought to be inserted.

Mr. ISAACS.-Where is the necessity for it?

Mr. SYMON.-The necessity is to bring all those applications for writs of mandamus, prohibition, and injunctions as against officers of the Commonwealth in the Commonwealth courts, and not to have them brought in the state courts, in which they undoubtedly ought not to be brought.

Mr. ISAACS (Victoria).-The provision does not say that such an application shall not be brought in the state courts. It is not exclusive, and if the power to make such an application in the state court exists the insertion of these words cannot take that power away.

Mr. BARTON.-It is an appellate jurisdiction, according to the American decision.

Mr. ISAACS.-If it is an appellate jurisdiction it necessarily assumes there is power to make application to the state court to start with, and the provision would not derogate from that power. The judicial power is conferred in respect of certain matters. Power is given to legislate in respect of certain matters, and in all things incidental or necessary in regard thereto. Surely that covers matters such as writs of mandamus, injunctions, prohibitions, habeas corpus, writs and attachments, and everything which constitute the means of the court to carry out its decrees. Parliament has the fullest power to confer those powers. My great objection to the proposal is that it will operate as a limitation upon other provisions for judicial power. It assumes there is no, power to grant a mandamus. The latest American case I know of on the subject-it is not in Baker, though it was decided before that book was published-is the United States ex rel. Boynton v. Blaine, decided in 1891, and reported in 139 United States Reports. This case makes the matter clear, both as to what the court can do and what it cannot do in regard to mandamus. In that case we read-

The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty, involving the exercise of judgment or discretion.

Now, the converse of that is also stated:-

When a mere Ministerial duty is imposed upon the executive officers of the Government, that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them.

That power exists in the United States without any provision to the effect in the Constitution. And it would exist with us [start page 1880] without any such provision. If we go putting in limitations, we should be in exactly the same position as we would if we put a series of limitations on the trade and commerce clause. We have heard it said frequently that if we put in these limitations on the trade and commerce clause, they will operate as a means of cutting down the wide operation of that clause. We are doing exactly the same if we put this in. What the Chief Justice of the United States stated was this:-

The writ of mandamus cannot issue in a case where its effect is to direct or control the head of an Executive department in the discharge of an executive duty involving the exercise of judgment or discretion. U.S. ex rel., Redfeld v. Windom 137 U.S., 636, 644. When by special statute or otherwise a mere Ministerial duty is imposed upon the executive officers of the Government; that is, a service which they are bound to perform without further question, then, if they refuse, the mandamus may be issued to compel them. U.S. ex rel. Dunlap v. Black, 128, U.S. 40, 48 The writ goes to compel a party to do that which it is his duty to do without it. It confers no new authority, and the party to be coerced must have the power to perform the act. Brownsville v. Loague, 129, U.S. 493,501.

What more do we want? If it is intended to go further, and put into this Constitution a power by which the court can have the right to do whatever it thinks just and proper on a mere application by way of mandamus, or prohibition, or injunction, then it is going a great deal too far.

Mr. SYMON.-That you cannot prevent the application now you have just shown.

Mr. ISAACS.-I think you cannot; but the court in construing such a clause would say there must have been some special reason for putting it in, and the only reason they could have for putting it in would be either to indicate that the previous power given was too small to confer it, and, therefore, would exclude other matters, or it would say that it was intended to enlarge that power and give a right to the court to act as it pleased on such application being made. Both of these positions I think we ought to avoid, therefore I would ask my honorable friends to consider very seriously before they insert this clause. It seems to be wholly unnecessary; it cannot work any good and it may work a great deal of harm.

Dr. QUICK (Victoria).-I would direct the attention of the leader of the Convention to the fact that the Constitution of the United States contains a distinct provision in favour of the writ of habeas corpus. Section 9 says-

The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.

Mr. ISAACS.-That is part of the Declaration of Rights.

Dr. QUICK.-I would point out to Mr. Symon that the writ of habeas corpus is a high prerogative right, because, according to Storey, vol. 2, page 237:-

In England this is a high prerogative, issuing out of the Court of Queen's Bench not only in term time, but in vacation, and running in all parts of the king's dominions, for it is said the king is entitled at all times to have an account why the liberty of any of his subjects is restrained.

I think that lends force to some observations I made at an earlier stage of the discussion to this effect: That if you are going to have a section enumerating writs which it is within the jurisdiction of the High Court to issue, then that enumeration ought to include all possible desirable writs. The

Constitution of the United States contains a distinct recognition of the writ of habeas corpus, and the section creating the jurisdiction of the Supreme Court of the United States does not enumerate any of those writs which it is now proposed to enumerate.

Mr. BARTON.-That does not provide for the writ of habeas corpus. It recognises an existing writ, and it only says that it shall not be suspended.

Mr. ISAACS.-It is like a declaration of rights.

Dr. QUICK.-But in the Constitution of the United States there is no section [start page 1881] such as is now proposed, limiting or defining the writs which may be issued by that court; it is left to the operation of the common law. Here it is proposed to put in a clause limiting and defining the class of writs to be issued to three, viz., mandamus, prohibition, and injunction. That, according to the great doctrine of limitation which has been so often impressed on the Convention, would exclude, by process of definition, the right to issue a writ of habeas corpus or a writ of certiorari. If there is to be a clause defining those writs, then I contend that it ought to be a complete definition and a complete enumeration embracing all possible writs for the enforcement of remedies, otherwise it is best to leave out the clause.

Mr. BARTON.-The object of this clause is a very clear one, if I may mention it without interrupting the honorable member. In certain cases the Supreme Court would have original jurisdiction, in others appellate. If you do not specially mention this, then in cases of mandamus, prohibition, and injunction, it can only have the ordinary appellate jurisdiction, but if you mention it specially as within the judicial power, and provide for it as an original jurisdiction, then a case may be taken straight to the court instead of having to filter through another court.

Dr. QUICK.-I have not the slightest objection to the clause provided that it is made sufficiently comprehensive to include all desirable remedies. I contend that these other remedies are equally as desirable as are those three.

Mr. ISAACS (Victoria).-If the court, under one of these sub-sections, has the power to deal with all cases arising under the Constitution it would have the power necessarily, or certainly the Federal Parliament would have the right to give the power, to exercise its jurisdiction by way of mandamus, or injunction, or prohibition.

Mr. BARTON.-In the United States it is extended only to cases of law and equity arising under the Constitution, but it was held not to confer this power as an original power. It only exists as an appellate one.

Sir EDWARD BRADDON (Tasmania).-I should like to ask the leader of the Convention whether this would be an exclusive right? If so, there is no doubt whatever that it would limit the liberties of the people of the states to some extent. Suppose, for instance, in any state a citizen had a grievance arising out of some neglect on the part of a federal officer, say a postmaster or a telegraph operator, would it be required by this clause that the person so injured, or fancying himself so injured, would have to proceed by way of mandamus or otherwise in the federal and not in his own local court, because of the exclusive jurisdiction we vest in the Federal High Court? If it is, then that citizen would be put to very considerable inconvenience by exercising one of his privileges of citizenship.

Mr. SYMON (South Australia).-There is no doubt whatever if the possibility which Sir Edward Braddon has indicated could arise, it would be a very grave blunder, and it would be a mischief which we ought at all hazards to avoid; but that would not be the position. If such a case as he put were to arise, it would not be necessary for the person who was aggrieved or considered himself aggrieved by the federal officer to proceed in the Federal High Court. He could proceed in any federal court or in any court invested with federal jurisdiction. In the United States these federal courts are distributed all over the country. There are circuit courts and there are other courts to dispense justice in all parts of

the Commonwealth. That, of course, necessitates a network of courts, involving very great expense and very great complexity. With the view of avoiding all that expense and all that complexity, we have provided in the Constitution that the Parliament, instead of duplicating a lot of federal courts, may invest the courts of the states with federal jurisdiction. That is the course which will be adopted, because [start page 1882] it is not contemplated that such applications as those should come before the Federal High Court. Therefore, if any citizen of the state had a grievance against a federal officer within that state, for the redress of which he required a mandamus or a prohibition, his remedy would be in the state to which be belonged-not to the local court or the Supreme Court of the state, but to that Supreme Court as invested with federal jurisdiction. He would not be compelled to go to the Federal High Court. He would have the remedy at his own door. Whether this clause is necessary or not is a matter I do not want to enter upon again. I agree with Mr. Isaacs that the federal courts would have the jurisdiction. What we want to prevent is that state courts shall have the jurisdiction over Commonwealth officers, and the remedy, if it was called for at all, would be a remedy enforceable within the bounds of the state at the door of the person aggrieved, and he would not be compelled to go away to the Federal High Court, in which the jurisdiction is not made to reside. That court would have jurisdiction, as a matter of appeal, from the decision of the court invested with federal jurisdiction.

Sir EDWARD BRADDON.-That is all right.

Mr. DOBSON.-Under clause 71 the Federal Parliament can give the Federal Court in a state only such jurisdiction as it thinks fit, and it may reserve some of these prerogative writs.

Mr. SYMON.-It may, and that is reaffirmed by clause 76. The whole scheme of jurisdiction is laid down here in skeleton, so to speak. The Parliament would then invest, no doubt, certain of the courts of the states with federal jurisdiction, otherwise there would be a possibility of a grave miscarriage of justice.

Mr. ISAACS (Victoria).-I did not, until a moment or two ago, quite apprehend the difficulties in the minds of Mr. Barton and Mr. O'Connor, and if they will not mind following me for a minute I think I can clear away those difficulties. In the United States it is quite clear how it is held that the Supreme Court has nothing but an appellate jurisdiction in respect of mandamus, that is, as to Commonwealth officers, because the Constitution says that the only cases in which the Supreme Court shall have original jurisdiction are-

Cases affecting ambassadors, other public Ministers, and consuls, and those in which a state shall be a party.

This is not a case where a Commonwealth officer is a party at all, and, therefore, there is no original jurisdiction in any respect as to the matter of which we are talking. The Constitution goes onto say-

In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make.

Therefore, as they have only appellate jurisdiction in regard to the merits of the case, they have only appellate jurisdiction in regard to an amendment in that case. But in our Bill we say-

In all matters-

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

IV. Between states:

the High Court shall have original as well as appellate jurisdiction.

The Parliament may confer original jurisdiction on the High Court in other matters within the judicial power.

Mr. BARTON.-They would not be matters within the judicial power, and therefore would have to come into this clause.

Mr. ISAACS.-Yes; but you cannot give a mandamus to the High Court in any matter which is not within the judicial power.

Mr. BARTON.-We want it in the judicial power.

Mr. ISAACS.-No. My honorable friend does not quite see what I mean. This is, only a remedy for carrying out the powers of the court, and you cannot put within [start page 1883] the judicial power a mere remedy where there is no right. The great distinction between the Constitution as we frame it and the Constitution of the United States is that in the United States there is no original jurisdiction at all, in a case where the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party, and therefore you can understand how a mandamus being a remedy in such a case is not within its original jurisdiction. But we put it within the original jurisdiction here, and it seems to me that a mandamus follows with it. It is only ancillary to the cape, and it seems to me to follow the main issue.

Mr. WISE.-Are they ancillary to every case?

Mr. ISAACS.-I should say that they are ancillary to every case where the court has jurisdiction. No doubt it is in the power of the Federal Parliament to confer original jurisdiction within the judicial power, but you cannot have a mandamus outside the judicial power. Therefore, it appears to me that it is not analogous to the case of the United States.

Mr. BARTON (New South Wales).-I think that this matter can be put on a clear footing without much difficulty. Perhaps it will be necessary to read section 2 of Article 3 of the United States Constitution, so that we may see where the difference lies. That section says-

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public Ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens, or subjects.

These are the jurisdictions of the High Court. Then we come to a paragraph defining the cases in which the jurisdictions are original, and those in which they are appellate. That paragraph is as follows:

In all cams affecting ambassadors, other public Ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.

It is because of this limitation that the decision in the case of Marbury v. Madison appears to have been given. In other words, although jurisdiction was given as to cases arising out of the Constitution that itself was only an appellate jurisdiction. Jurisdiction was not given in arty express terms as to writs of mandamus, prohibition, or injunction. Therefore there was only an appellate jurisdiction.

When the United States Congress tried to confer an original jurisdiction upon the Supreme Court of the United States, it was held that, as there was no such jurisdiction conferred by the Constitution, it could not be conferred by an Act of Congress, because such an Act was outside the Constitution. For that reason, the statute was held to be void.

Mr. ISAACS.-At this juncture the difficulty arises, could the court grant a writ of mandamus except in the cases in which jurisdiction has been given?

Mr. BARTON.-I think it would apply to any case in which, under the common law, or under any statute made for the furtherance of the duties imposed by it, you could obtain, we will say, a writ of mandamus. Similarly, it would apply in regard to writs of prohibition and injunction. I want honorable members to bear in mind that this is simply a provision conferring jurisdiction. It does not confer-and this answers the doubt of the Right Hon. Sir Edward Braddon-upon any person any new right. It does not give anybody a right to pursue in any way an officer of the Commonwealth, [start page 1884] except such right as arises out of the known principles of law, which go to this extent: I will take the writ of mandamus as an illustration. Where there is a duty imposed by an Act of Parliament, and that duty has to be performed, not merely in relation to the Crown, but also for the benefit of the public, any person aggrieved by the non-performance of it may obtain a writ of mandamus. In the same way, where it is proposed to put into operation against him some process of the law, he, as a subject, having the right to have this process of law properly exercised, can obtain an injunction against its wrongful exercise. Those are the class of cases to which these provisions are intended to apply. If you did not put this power into the Constitution the result would be that it could only be exercised upon an appeal from another court. The position under this Constitution will be somewhat analogous to the position under the United States Constitution. In clause 73 we enumerate the judicial powers. We propose to include among them, as we did before, this power to decide cases in which writs of mandamus, prohibition, and injunction are applied for. Then, we propose to put into clause 77-and I think the honorable and learned member (Mr. Symon) will hear me out in this-the same words as to these writs. This will give the High Court original jurisdiction, as well as appellate jurisdiction, in these cases, so that when a person wishes to obtain the performance of a clear statutory duty, or to restrain an officer of the Commonwealth from going beyond his duty, or to restrain him in the performance of some statutory duty from doing some wrong, he can obtain a writ of mandamus, a writ of prohibition, or a writ of injunction.

Mr. ISAACS.-Would not that be so under sub-section (3) of clause 77 in any case?

Mr. BARTON.-I do not think that it would. My honorable and learned friend has argued that a provision relating to all matters in which the Commonwealth or a person suing or being sued upon behalf of the Commonwealth, or to which the Commonwealth is a party, would cover the case, but I do not think that it would. It is a grave question whether the expression "a person suing or being stied on behalf of the Commonwealth" does not mean a person who is being simply impleaded in an action of law. That is more strongly shown by reference to the other words of the clause, because original jurisdiction is given in cases to which the Commonwealth is a party, but only in respect to a person representing the Commonwealth, that is, a person suing or being sued upon its behalf. I think there is the very gravest doubt as to whether the words in subsection (3) of clause 77 would be sufficient authorization for an original jurisdiction. Now I come to the point raised by the honorable and learned member (Dr. Quick), that this does not specify all the writs in respect to which jurisdiction may be exercised. But it was not intended to do that. A writ of habeas corpus is a common law writ, in regard to which you have no trouble as to its exercise. It is one of the rights which the subject carries with him so long as he is within British territory, and there is no necessity to put enabling words as to that writ into the Constitution. Even in America, where they had acted up to the time of the framing of the Constitution under the rules of the common law of England, and where they still do so except where they have statutory provisions limiting or modifying or taking away its operation-even there it was not held to be necessary to place any provision in the Constitution to insure that the writ of habeas corpus should run. All that was held necessary was to protect the writ of habeas corpus by preventing it from being suspended under the circumstances mentioned in section 9. So we come back to [start page

1885] this position. What we want here in the case of these three writs, which are specially in their nature addressed to persons who may be carrying out the provisions of the statute law, is to enable proceedings against those persons to be taken directly in the High Court, instead of its being necessary to go first to another court and then to proceed on appeal to the High Court. If we do not insert a provision in regard to this matter into this clause, then in such cases application will have to be made first to some court other than the High Court, because you have not given the High Court jurisdiction.

Mr. ISAACS.-But you have empowered Parliament to confer it.

Mr. BARTON.-Yes; but application will have to be made to another court first, because you have not given the High Court original jurisdiction. The matter can only come before the High Court after it has filtered through another court, and by way of appeal. Is it not right, however, that the subject should be empowered, when he has a right to one of these writs against an officer of the Commonwealth, to go to the High Court at once-to the court which protects the Constitution-to obtain his rights under the Constitution? That is the sole question. The Premier of Tasmania seemed to have great doubt as to whether this provision did not confer rights. I would, therefore, point out to him that it does not enable the High Court to grant a prohibition or a mandamus or an injunction against an officer of the Commonwealth unless the law already enables that to be done. The object of it is to make sure that where a person has a right to ask for any of these writs he shall be enabled to go at once to the High Court, instead of having his process filtered through two or more courts. I think that the honorable and learned member (Dr. Quick) will see why other writs are not enumerated. This provision is applicable to those three special classes of cases in which public officers can be dealt with, and in which it is necessary that they should be dealt with, so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.

New sub-section (7) was agreed to.

Mr. BARTON (New South Wales).-I beg to move-

That the following words be added to sub-section(8):"Or between residents of different states, or between a state and a resident of another state."

The amendment was agreed to.

The clause, as amended, was agreed to.

Clause 74.-The High Court shall have jurisdiction, with such exceptions, and subject to such regulations as the Parliament may from time to time prescribe, to hear and determine appeals from all judgments, decrees, orders, and sentences of any other federal court, or court exercising federal jurisdiction, or of the Supreme Court of any state . . . . . . .

Mr. BARTON (New South Wales).-I beg to move-

That the words "with such exceptions and subject to such regulations" (lines 2 and 3) be omitted, with the view to the insertion of the words "subject to such conditions."

My honorable friend (Sir Joseph Abbott) seemed to entertain the idea that the pass in of this slight amendment might affect his right to propose an amendment in the clause, but I think, sir, you will support my statement that it would be perfectly competent for him to move his amendment upon the second recommittal?

The CHAIRMAN.-Certainly.

Mr. BARTON.-Honorable members will see that this provision gives the High Court jurisdiction to hear and determine appeals, "with such exceptions and subject to such regulations as the Parliament may from time to time prescribe." The difficulty about the clause as it, stands is this: That it allows the Parliament to legislate in reference to the jurisdiction of the High Court in regard to appeals in such a way that, little by little, the High Court may become the mere shadow of a Court of Appeal. That position arises because we have placed in [start page 1886] a parenthetical part of the clause words which appear to be too strong. For these words I therefore propose to substitute the words mentioned in the amendment. The Parliament will still be able to prescribe regulations for the hearing of these appeals, but it will be unable to take away the appellate power of the court.

Mr. HIGGINS.-Does that mean that a man will be able to appeal even in a case concerning only 10s.?

Mr. BARTON.-I do not think so. The right of appeal relates to the question of law or fact that is decided. The Parliament might impose conditions of appeal, just as Orders in Council impose conditions of appeal, which would limit the right of appeal so as to exclude minor or trumpery cases.

Mr. HIGGINS.-I understood that the object was to enable some common sense to be exercised in determining what appeals should be allowed. If the amount involved was not beyond a certain sum, there ought to be no appeal.

Mr. BARTON.-It was exactly what the honorable member describes, and that is the object of this amendment. The question is: Which is the better way of saying the thing? We are afraid that if we say "with such exceptions and subject to such regulations," it will be in the power of Parliament by successive regulations to cut down the right of appeal.

Mr. ISAACS.-Does not the honorable member think that if there is no power to make exceptions, every man might appeal, even in connexion with criminal matters?

Mr. BARTON.-I do not think so, but it is difficult to find suitable words.

Mr. SYMON.-Would it not be better to adhere to the words we have got?

Mr. BARTON.-There is a reference to the subject to which Mr. Glynn called my attention in Mr. Burgess' well-known book, which shows that a difficulty has arisen from the use of these words, and that it is a real difficulty. If the present provisions of the Bill are retained in relation to appeals to the Privy Council, and appeals can only be taken from the High Court or from the court of a state when the cases come within certain limits, and if in addition to that the Parliament is given the right to take away appeals, then the right might be limited not only on the side of the Privy Council, but also on the side of the High Court. The state court would really be the final court of appeal. What I object to is the retention of words which would enable Parliament so to cut down the jurisdiction of the High Court in appeal cases as to leave, in some cases, a person who has a right practically without any remedy by way of appeal.

Mr. ISAACS (Victoria).-This amendment takes me by surprise. It is far more than a drafting amendment.

Mr. BARTON.-It is not a drafting amendment.

Mr. ISAACS.-When the clause was discussed before, an honorable member distinctly asked whether it related to appeals in criminal matters. I think it was asserted that, as the words now sought to be excised were in the clause, it would be within the competence of the Federal Parliament to prevent appeals in criminal cases. The clause, as it stands, provides that the High Court shall have jurisdiction, subject only to any exceptions Parliament may impose, to hear appeals from any Federal Court or from the Supreme Court of any state on judgments, orders, and sentences. Sentences would

include criminal matters. I would point out, also, that if the state Legislature chooses to say that a decision of the Supreme Court of the state shall be final and conclusive, and without appeal, in any particular state matter, yet under the terms of this clause the provisions of that state legislation would be nugatory in that respect, and they would have a right of appeal under the Constitution. Surely we do not intend to do that. But let us carry the matter a little further. Let us take the case of a [start page 1887] man who has been fined in a police court for an assault. He appeals to the Supreme Court under the law of the state. Under this clause he could carry the case to the Federal High Court, notwithstanding any negative provision in the state legislation. We are not trusting the Federal Parliament. We are really taking it out of their power to prevent an abuse of the judicial machinery. I think that is going too far. I war, not aware that anything had occurred in the Convention that invited the alteration that it is now sought to make, and I think it will go very much further than any of us contemplate.

Mr. SYMON (South Australia).-I join with the Hon. Mr. Isaacs in deprecating a change of this language. There is no doubt whatever that some tribunal or other should be able to say, when the details of the Judiciary Act are being dealt with, within what limits appeals in these various matters against orders, judgments, sentences, and so on, should take place. If we leave in the words "with such exceptions and subject to such regulations we undoubtedly leave it to the Federal Parliament to do that. If we take the words out and say "subject to such conditions" it would undoubtedly mean that in every case of every judgment, every order, every sentence, there may be a right of appeal, but the conditions under which it may be conducted are to be left to be regulated by the Federal Parliament. That would not be a desirable condition of things. This is one of the matters in connexion with which we should not tie the hands of the Federal Parliament, but we have to prescribe the machinery for carrying out the whole of these provisions.

Mr. GLYNN (South Australia).-I have called attention to this matter two or three times already in the Convention, and, as the amendment is proposed, I may be allowed to refer to authorities who recommend a change in the direction suggested by the Drafting Committee. Under this and subsequent clauses you are taking away front the states the Court of Appeal they have at present-that is, the Privy Council-and you are putting it in the power of the Federal Parliament to deprive the states of the right of appeal to the Federal High Court. The proper procedure would be to give a complete appellate jurisdiction to the Federal High Court, but to say that the state or the Federal Parliament might declare that in particular cases the appeal should not be allowed. It is to the method of accomplishing what is desired that I object. We ought to arm the Federal High Court with absolute authority, but we ought to leave the power in the state, in the case of state laws, of saying that in certain cases appeals should not be allowed. You are proposing to emasculate the power of the High Court instead of taking away the right of appeal by a state Act of Parliament, and that is the wrong way to proceed.

Mr. HIGGINS.-Is the Federal Parliament under any temptation to emasculate the system of appeals?

Mr. GLYNN.-The Federal Parliament has done it in America, and Mr. Burgess and several other writers point out the danger arising front the words used in the Constitution. I will first quote Mr. Wilson on Congressional Government. He points out that for many years the Federal Judiciary has had a distinct political complexion taken from the colour of the times during which its majority was chosen, and he says-

The federalists were backed by a Federalist Judiciary; the period of democratic supremacy witnessed the true triumph of democratic principles in the courts; and republican predominance has driven from the highest tribunal of the land all but one representative of democratic doctrines. It has been only during comparatively short periods of transition, when public opinion was passing over from one political creed to another, that the decisions of the Federal Judiciary have been distinctly opposed to the principles of the ruling political party.

That, it is pointed out, is owing to the dependence of the Judiciary for its [start page 1888] jurisdiction on the High Court. Then Mr. Wilson also says that, in 1883, owing to a dispute as to the political complexion of the court, Parliament interfered and swept away the whole of its jurisdiction. He quotes these words as giving undue power to Parliament:-

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

Then Mr. Wilson says-

A democratic Congress swept away root and branch the system of circuit courts which had been created in the previous year, but which was hateful to the newly successful democrats, because it had been officered with federalists in the last hours of the John Adams Administration.

That has been the result of keeping these words in the United States Constitution. I would call the attention of honorable members to the decision of the High Court itself. In the case of Turner v. The Bank of North America, it was distinctly laid down that the appellate jurisdiction of the High Court, except in one or two matters, was altogether at the mercy of the Federal Parliament. Mr. Burgess, in the last edition of his work Political Science and Constitutional Law, says-

The second limitation is the general one contained in Article 3, section 2, paragraph 2, which vests in the Legislature the power to regulate, and make exceptions to, the appellate jurisdiction of the Supreme Court. This power of the Legislature over the Judiciary is a most serious one. It places the appellate power of the court very nearly at the mercy of the Legislature. The Legislature has made use of this power in the passage of the several Judiciary Acts, and I do not know that it can be said to have abused it.

Mr. Wilson says the contrary.

Mr. HIGGINS.-He was a party writer. Mr. Burgess is impartial.

Mr. GLYNN.-He is not so strong on the subject as Mr. Wilson. Mr. Wilson bases his judgment on the fact that in America attempts have been made to take away the jurisdiction of the Judges where the Judges have not been complaisant to Parliament. Mr. Burgess also says-

It seems to be, however, an unnecessary surrender of the independence of the courts to require that things which can be better accomplished by the rules of the court shall wait upon the pleasure or, possibly, caprice of the Legislature.

That has been the effect of the retention of these words in the American Constitution. I would ask whether it would not be better to allow the High Court to hear any appeals, and to make some specific provision to enable the state or the Federal Parliament to say that no appeal should be allowed in certain small matters? That is really the law of the English Judicature at the present time. If you want to take away the right of appeal, you do not pass an Act saying the Supreme Court is not to hear the appeals; you say, in these cases, no appeal is to lie. The general rule of law is that, unless the appeal is granted by an Act of Parliament, no appeal lies. There will be no interference with the complete jurisdiction of the Federal Court. That is what ought to be done.

Mr. HIGGINS.-Do you want to leave the limitation of appeals to the Judges?

Mr. GLYNN.-No; I want to continue the existing law, when the right of appeal will depend upon the law in the state, and not on the courts. If we abolish the appeal to the Privy Council, we should retain the same right to the state of going to the High Court as it has to go to the Privy Council, and we should apply the same rules as the Privy Council applies to small matters. I think the Privy Council has power to say that, although an appeal may be granted, it will not hear it.

Mr. O’CONNOR.-The Orders in Council issued with regard to the Privy Council deal with that matter.

Mr. GLYNN.-The same thing can be done here by giving power to the Judges of the High Court to make rules. I think [start page 1889] that is the true principle, and it should be carried out by a slight addition to the wording of the clause. I will again press this matter upon the attention of the Convention, because I regard it as very important.

Mr. WISE (New South Wales).-The Convention owes a debt of gratitude to Mr. Glynn for the clear way in which he has put this question. I shall support the amendment of Mr. Barton in consequence of the very lucid exposition given by Mr. Glynn and the examples he has cited from the history of the United States. I recognise a very grave danger in putting it in the power of Parliament to limit in any way the right of appeal, and, consequently, the power to destroy the jurisdiction of the court. At the same time, I am not the least apprehensive of the dangers apprehended by Mr. Isaacs, because the first sub-section provides that the only cases in which appeals are allowed under this Constitution are from decisions either from the Supreme Court of the state, or in such cases as the state considers of sufficient importance to allow appeals to the Privy Council. Each state has, therefore, power to prevent trivial appeals by providing that the decisions of a court of first, instance shall be final. If the case is of sufficient importance to go to the Supreme Court of the state, it should go to the High Court of Australasia just as it can go to the Privy Council.

Mr. ISAACS.-But there are County Court cases in which there is no appeal to the Supreme Court.

Mr. WISE.-If a case is of sufficient importance to go to the Supreme Court it ought to be of sufficient importance to be appealable to the High Court. A County Court case can go to Privy Council by special leave.

Mr. HIGGINS.-So can a case in any court go to the Privy Council by special leave.

Mr. WISE.-I would not limit the right of appeal any more than it is limited at present, although I quite admit there may be a certain absolute right of appeal to the High Court conferred by this Constitution which does not exist in the case of the Privy Council. I am prepared to run that risk rather than run the greater risk of saying that the right of appeal to the High Court should be dependent upon a chance majority in Parliament.

Mr. HIGGINS.-How does Mr. Barton's amendment cure the case?

Mr. WISE.-By striking out the word "exceptions."

Mr. HIGGINS.-But by imposing conditions you can practically prohibit a man getting into the court.

Mr. WISE.-I don't think so, because any such Act would be held to be ultra vires. The honorable member knows that the power to impose conditions is granted, but it does not allow you to impose such conditions as would render the right impossible.

Mr. ISAACS.-But giving the right to Parliament is totally different.

Mr. WISE.-Any condition which would prevent the right of appeal would be held to be ultra vires. There is one slight alteration which might meet the difficulty of the honorable member. We might put in the words "condition as to amount" but at the same time that might limit it too much. I think Mr. Barton's suggestion is the right one.

Mr. HIGGINS (Victoria).-I hope the amendment will not be carried. I quite admit that Mr. Glynn has done good service in calling attention to the question, but we have to accept one of two risks. We have either to prescribe that every application or order, no matter how trumpery, is to involve a right of appeal to the High Court, or else we shall have to trust the Federal Parliament that it will not do injustice.

Mr. WISE.-Every order of a Supreme Court of a state, that is the distinction.

Mr. HIGGINS.-It might be the order of a Supreme Court for security for costs, or an order of the Supreme Court that certain particulars shall be given on a statement of claim, or an order that there shall [start page 1890] be a certain thing done-say, a certain pleading, delivered in eight days, fixing the time within which it is to be done. According to that, we must give the party defeated a right of appeal to the High Court. That would be quite unworkable. It may be very important to have good law, but it is far more important that we should have an end to trumpery applications and some finality in small matters. Every court in the world has some limit as to appeals. For instance, in appeals to the Privy Council there is no right of appeal from our courts unless the amount exceeds £500 in one case and £1,000 in another. The Privy Council does not hear all appeals, and it needs a very special caw to induce it to hear an appeal as to a small sum. Then it said that there is a danger that the Federal Parliament may cramp or cripple the High Court by making the exceptions very numerous, and Mr. Glynn has read some passages on that point. Reading Burgess, it is very clear from that writer that there has been no abuse of the power at all by the Federal Parliament of the United States. The danger is more theoretical than practical. I ask honorable members what temptation or inducement will the Federal Parliament have to cripple its own court? The Federal Court is under its thumb in many respects, and, if anything, the Federal Parliament would be more inclined to go in favour of the federal jurisdiction. Where does the inducement come in to the Federal Parliament to cripple the powers of its own courts? It is true that the Federal Court has to stand between the states and the Commonwealth, but, at the same time, it is to the Federal Parliament that you give the power of appointing the Judges and removing the Judges. Although those Judges are to stand as buffers between the Federal Parliament and the individual state Parliaments, if you trust the Federal Parliament with that power I think it is only fair for us to trust the Federal Parliament to lay down some general rule, which is not applicable to a particular case, but to all cases, and to say that, inasmuch as the power; has not been abused in America, it will not be abused here. There was an abuse of a certain power in America when one party came into power and abolished circuit courts, but that is very different from abolishing generally the right of appeal. As Burgess says, there has been no instance known of an abuse of this power. There is no doubt there is a danger in theory, but not in practice, because, as far as we can see, there is no temptation. If Mr. Barton's words are introduced, the danger is equally great, because be says the High Court shall have power to hear appeals subject to such conditions as Parliament may prescribe, and so forth. I ask any honorable member if he cannot confirm me in this, that by imposing conditions you can practicality interfere and take away the power of appeal? Supposing, for instance, there was an order made that interrogatories should be administered, and if Parliament said there should be no appeal from the order for interrogatories unless there was a deposit of £10,000 security, that would practically knock the thing on the head. First, there is no practical need for the provision; and, secondly, the proposed amendment will not cure the evil if there is one.

Mr. O’CONNOR (New South Wales).-I hope this amendment will be carried. I do not think we can bear too strongly in mind the fact that we are taking away the Privy Council appeal in a very large number of cases.

Sir EDWARD BRADDON.-I hope not.

Mr. O’CONNOR.-Whether it is done as; in the Bill, or in a more limited way, the right will be taken away to a very large extent. If we do not take away the right of appeal we are at any rate, substituting in very many cases this High Court for the Privy Council, and I think we should be very

careful not to give power to Parliament to take away the right of appeal as it exists now, to the Privy Council.

[start page 1891] Sir GEORGE TURNER.-Do you mean to take away the right of appeal as it exists now or in the case of new appeals?

Mr. O’CONNOR.-No; this clause gives Parliament the right to determine the method of appeals. If you give it the right to make exceptions, you give it the right to except certain cases. Mr. Isaacs referred to appeals in criminal cases. There might be strong reason as a matter of general policy why there should not be appeals in criminal cases, involving, as they necessarily would great delay between the time of the passing of sentence and the carrying of it out. For that reason, I think appeals to the Privy Council in criminal cases are only allowed under very exceptional circumstances, but the case will be altogether different when you have a Court of Appeal sitting in Australia, the sittings of which can probably be made available for a criminal case in a very few weeks.

Mr. ISAACS.-If a man is tried in a Supreme Court he has an inalienable right of appeal to the Federal Court. At the General Sessions he may be given a much heavier sentence, but he has no right of appeal to the Federal Court.

Mr. O’CONNOR.-With all respect, I do not think this touches that point.

Mr. ISAACS.-That is what you are doing here.

Mr. O’CONNOR.-No; a man subject to a sentence of any kind is entitled now to appeal to the Supreme Court of the state.

An HONORABLE MEMBER.-No, not under this section.

Mr. O’CONNOR.-I am taking it step by step, and I am taking the law as it is now. A man is entitled to an appeal to the Supreme Court in all the states.

Dr. QUICK.-Unfortunately that is not the case in this country, although, I admit, it is by a mistake in our legislation.

Mr. O’CONNOR.-That may be; but I am speaking with regard to most of the colonies. It is true that there is a right of appeal generally in criminal cases.

Dr. QUICK.-No.

Mr. O’CONNOR.-Whether there is or not, there ought to be. There can be no question that if you allow a right of appeal in cases of property, there ought to be a full right of appeal, in all cases where a man's liberty, and perhaps his life, is involved. I am pointing out that there is a, great deal of difference in restricting that right of appeal in a case where you have to appeal to the Privy Council, in which case the decision may not be given for some months, and where you can appeal to a Supreme Court in a few weeks. I think that the right of appeal in all criminal cases ought to be reserved to the High Court, which we have put here in place of the Privy Council. But you would put it in the power of the Legislature to take away that class of appeal altogether. It would be better to use the words here which would enable the Legislature to make a law leaving the determination as to the terms of appeals to the High Court. Probably the Federal Court would be the best authority to decide the conditions of appeals.

Mr. ISAACS.-Would not this allow a case to be reheard in the Full Court?

Mr. O’CONNOR.-No; that would be to completely reverse the common law as we know it.

Mr. ISAACS.-You are going to do that here.

Mr. O’CONNOR.-I do not think so. But whether that is so or not, this amendment would not make any difference one way or the other. I hope that earnest attention will be given to Mr. Glynn's appeal, and to the cases which he has cited. This is not an imaginary danger, and although we need not impute any improper or indirect motives to the Parliament, we ought to take care that this High Court, which we are setting up instead of the Privy Council, will insure an appeal in all cases where appeals ought to be allowed.

[start page 1892] Mr. HOLDER (South Australia).-There is another matter which bears on this question, and which suggests the importance of exceptions. There is included in the 140 amendments suggested by the Drafting Committee an amendment in the latter part of clause 74 involving what is a new matter. It is not merely a drafting amendment. It refers to appeals from the Inter-State Commission. Surely it was intended that those appeals should only lie on questions of law. I cannot understand our allowing appeals on questions of policy or of fact.

Sir GEORGE TURNER.-We fought several days against that.

Mr. HOLDER.-Appeals on points of law certainly ought to lie, but not appeals on matters of fact.

Mr. KINGSTON.-And appeals on points of law are not provided for in all cases.

Mr. HOLDER.-I do not know that there may not be cases in which appeals on points of law would not be allowed. At the proper time I shall seek to make an addition to the clause; but in the meantime I shall ask the Drafting Committee to consider it.

Sir EDWARD BRADDON (Tasmania).-If our adoption of this amendment depends on, or is justified by, the action we have taken up to this time with regard to the right of appeal to the Privy Council, I hope we shall pause before we accept it. I am not without hope that on further consideration this Convention will very much modify the decision in respect to the right of appeal to the Privy Council.

Mr. SYMON.-I hope it will not.

Sir EDWARD BRADDON.-That does not interfere with my hope. The honorable member will surely allow me to entertain and express a hope contrary to his own.

Mr. WISE (New South Wales).-I think that if the amendment which Mr. Barton has proposed is negatived, we might leave the clause as it stands, and yet secure our object, which is to prevent any undue interference by Parliament with the High Court, by putting in this proviso:-

Providing that in respect of any exception or regulation prescribed by Parliament by virtue of this section, the High Court may grant special leave to appeal in any case under this section, but on such terms as to the court may seem fit.

Mr. ISAACS.-And then the High Court may override the Parliament.

Mr. WISE.-Precisely. That is what is intended.

Sir GEORGE TURNER.-Had we not better abolish Parliament?

Mr. WISE.-Orders in Council are made which will correspond to the exceptions and regulations provided for in this clause; but, in spite of that, the Privy Council always has power to disregard those

orders, and to grant leave to appeal. The danger here-and it is a very grave danger-is that the powers of the Parliament may be so abused as to destroy the jurisdiction of the court. This is only a weapon of defence against an unwarrantable attack.

Sir GEORGE TURNER.-But Parliament can only act under the authority of the people.

Mr. WISE.-On two occasions the power of the United States Parliament was invoked to destroy the authority of the High Court.

Mr. SYMON (South Australia).-I cannot conceive it possible that the Federal Parliament or any other Parliament of an English speaking people will do anything to degrade or improperly interfere with the administration of justice, and that is what the contention amounts to. I am not wedded to either the one form of words or the other, but I undoubtedly think it would be a very grave mistake to introduce in this Constitution a provision which would in effect give unrestricted right of appeal in every case, without allowing Parliament. to say that there should be some exceptions. For instance, a decision in which a fine of 5s. was imposed for common assault might be made the subject of appeal, and I do [start page 1893] not think that any of us desire that that should be the case. The only thing we have to determine is whether we have such a district of the proper administration of justice that we are going to tie the hands of the Federal Parliament. I would be quite willing to assent to the words proposed subject to such conditions, if I thought those words would enable the Federal Parliament to restrict appeals to cases in which appeals ought to be allowed.

Mr. DOBSON.-Why not insert "and with such limitations as to the amount involved"?

Mr. SYMON.-Honorable members forget that this is a Constitution we are framing, and not a Judicature Act. For instance, there might be appeals against interlocutory orders. We are becoming altogether too technical; and if we are to proceed in this fashion, we might as well introduce in the Constitution the latest edition of Roscoe's Pleadings and Evidence.

Mr. GLYNN (South Australia).-I know that great weight is to be attached to what Mr. Symon says, but I would like to point out that this possibility which he evidently believes never would arise has actually arisen in America. I have only quoted two cases, but I could have cited another authority who deplores the existence of this power in Parliament. In view of these facts, what becomes of the allegation that such a thing is impossible? It has actually occurred in the only Federation in whose Constitution these very words stand. This is one of those cases in which an ounce of fact is worth a pound of theory. Mr. Symon says that if we do not leave these words in there will be appeals in almost every case of minor importance, and that Parliament will have no power to interfere. But we do not wish it to remain in that way. I suggest that Parliament should be empowered to authorize that the state court or the Federal Court should have power to place restrictions on puisne appeals.

Mr. SYMON.-That is a very intelligent proposal.

Mr. GLYNN.-Well, I made that proposal before, and it is only a matter of drafting. If we retain these words we will really destroy the whole thing, and it seems to me that the object we have in view would be attained by inserting after t he word "appeals" the words "in all cases in which they lie, and under such conditions and regulations as the High Court may prescribe by rules." Then the High Court may put, as the Privy Council does, a ban on appeals of a trivial nature. If the words we object to are retained they will put the whole jurisdiction of the High Court at the mercy of the Federal Parliament.

Mr. ISAACS.-That is impossible under clause 77.

Mr. GLYNN.-But clause 74 limits the operation of clause 77. In some cases there is an original as well as an appellate jurisdiction, but the foundation of the right of appeal in the High Court rests on clause 74, which contains the words to which I object.

The amendment was negatived.

Mr. ISAACS (Victoria).-The amendment about the Inter-State Commission in subsection (2) of clause 74 would certainly have escaped my attention but for what has just transpired. I have a very strong objection to the words "Inter-State Commission" being inserted in this clause.

Mr. BARTON (New South Wales).-I understood that the drafting amendments were to be placed in the Bill, but that that did not give away the right of any honorable member to canvass them at a later stage. The amendment to which Mr. Isaacs objects is merely an attempt to express the sense of the Convention as members of the Drafting Committee gathered it in the debate on the clause relating to the Inter-State Commission. There seemed to be, I will not say a general consensus of opinion, because some honorable member who said nothing might think [start page 1894] something the other way, but several honorable members said, without any opposition being manifested, that there ought to be provision for an appeal to the High Court from a decision of the Inter-State Commission. The amendment merely expresses that view, which we gathered to be the sense of the Convention on the subject. The honorable member will have every opportunity of moving to strike out these words at another time. I understood that we were simply going through the amendments that I proposed on recommittal, leaving the other amendments to be dealt with afterwards.

The clause was agreed to.

Clause 77 (Original jurisdiction of High Court)

Mr. O’CONNOR (New South Wales).-I beg to move-

That the following words be added to sub-section (3) of clause 77:-"or between residents of different states, or between a state and a resident of another state."

It is necessary to add these words.

Sir GEORGE TURNER (Victoria).-I should like to know a little about this amendment.

The CHAIRMAN.-It is the same as an amendment which we have already made in clause 73. It is consequential.

Sir GEORGE TURNER.-"Or between residents of different states." Will not the effect of that be to alter the law as it stands by which, say, a person living in New South Wales can be sued by a person living in Victoria or South Australia? Will this provision take away the jurisdiction of the local courts and compel actions to be brought only in the Federal Court

Mr. BARTON (New South Wales).-This amendment does not, take away the jurisdiction of any local court.

Sir GEORGE TURNER.-I am not sure that it does not.

Mr. BARTON.-What the provision does is to give a certain jurisdiction to the High Court, which enables a litigant to go to the High Court in the first instance. Of course, in the case of an appeal he would go to the High Court first, but the High Court has original jurisdiction, and can entertain a case in the first instance. That is all.

The amendment was agreed to.

Mr. O’CONNOR (New South Wales) moved-

That the following new sub-section (5) be added to the clause:

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

The amendment was agreed to.

The clause, as amended, was agreed to.

Clause 79.-The trial of all indictable offences against any law of the Commonwealth shall be by jury, and every such trial shall be held in the state where the offence was committed, and if the offence was not committed within any state the trial shall be held at such place or places as the Parliament prescribes.

Mr. BARTON (New South Wales).-I beg to move-

That the words "of all indictable offences" (line 1), be struck out, and that the words "on indictment of any offence" be substituted.

The object of this amendment is simple. As the clause stood it provided that the trial of all indictable offences against any law of the Commonwealth "shall be by jury." This meant that, however small might be the offence created by any Commonwealth enactment, supposing an offence that should be punishable summarily, it would, nevertheless, have to be tried by Jury. Then there are cases of contempt which are, we know, indictable offences, and these, under the clause, would have to be tried by jury. The better way, however, is as we suggest, that where there is a power of punishing a minor offence summarily, it may be so punished summarily. But where an indictment has been brought the trial must be by jury. The object was to preserve trial by jury where an indictment has been brought, but such cases of contempt should be punishable by the court in the ordinary way. The clause as it stood would compel the trial of all contempts by jury, and so. [start page 1895] in regard to a large number of minor cases with which, of course, it would be necessary to deal promptly by way of summary procedure. There will be numerous Commonwealth enactments which would prescribe, and properly prescribe, punishment, and summary punishment; and if we do not alter the clause in this way they will have to be tried by jury, which would be a cumbrous thing, and would hamper the administration of justice of minor cases entirely.

Mr. ISAACS (Victoria).-When the clause was before us previously, I pointed out that I did not think it would have any real effect at all, because it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not to be an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.

Mr. BARTON.-It might drive the Commonwealth to deal differently with this class of offences.

Mr. ISAACS.-It might. If you say "on indictment of any offence," if it means proceedings by means known technically as indictment, that could be got over by what is known as a presentment, and then the trial need not be by jury at all. It could be got over in various ways by saying that the jury should be composed of two persons, or, of only one person. The alteration here proposed prevents the difficulty Mr. Barton refers to, but I must say that I do not see much effect in the clause as it stands in regard to preserving in all circumstances trial by jury.

Mr. DOUGLAS (Tasmania).-There are many offences dealt with summarily which are indictable, and we must be careful not to do away with summary jurisdiction. That would not be at all desirable.

The amendment was agreed to.

The clause, as amended, was agreed to.

Clause 80.-No person holding any judicial office shall be appointed to or hold the office of Governor-General, Lieutenant-Governor, Chief Executive Officer, or Administrator of the Government, or any other executive office.

Mr. BARTON (New South Wales).-I beg to move-

That at the end of the clause there be added the words "of the Commonwealth."

The object of this amendment is to make it clear that a person, holding a judicial office may not hold any other executive office in the Commonwealth. Without this addition at the end of the clause, it might be possibly construed to mean that the Chief Executive Officer or Administrator of the Government is an officer of the state. To restrict the clause to what is really intended, that is to say, to prohibit all judicial officers from holding offices in the Commonwealth, we propose to add these words. There seems to be a strong opinion in the Convention that the holder of any judicial office should be prohibited from holding these Commonwealth offices.

Mr. ISAACS.-Would he necessarily be excluded under the words as now?

Mr. BARTON.-I do not say that; but I have an impression that he would. The words are-"No person holding any judicial office."

Mr. SYMON.-Any person in active service.

Mr. BARTON.-Yes, as my friend says, any person in active service-any Judge who is not a retired Judge.

An HONORABLE MEMBER.-That would exclude a justice of the peace.

Mr. BARTON.-No, I do not think it would. Primarily a justice of the peace was a ministerial officer who inquired into indictable offences, and committed or not, as there might be a prima facie case. But a justice of the peace has since been invested by statute with summary jurisdiction. I question whether that makes the office of justice of the peace a "judicial office."

[start page 1896] Mr. HIGGINS (Victoria).-Before the amendment is put, I desire to say I have given notice of an amendment. I suppose this will be the proper time for me to submit that amendment, as clause 80 has been recommitted.

Mr. BARTON.-The amendment of the honorable member is for the second recommittal.

The CHAIRMAN.-I understood the consensus of opinion was that on this particular recommittal we should only deal with the amendments of the Hon. Mr. Barton, and that afterwards there was to be another recommittal to deal with the suggestions of other honorable members of the Convention.

Mr. HIGGINS.-Very well, so long as that is understood.

Mr. BARTON (New South Wales).-It might, perhaps, be desired to make an exception such as is suggested in regard to the office of justice of the peace, but it is not intended that a person who holds merely the office of justice of the peace should be excluded.

Mr. SYMON.-If a gentleman were offered the post of Lieutenant-Governor he would not hesitate to resign his position as justice of the peace. I see no practical difficulty in the way.

Mr. BARTON.-I do not think myself there will be any practical difficulty. If the Convention consider it necessary to insert, after the words "judicial office," the words "not being that of justice of the peace," there could be no objection, but I think that would be overloading the clause.

The amendment was agreed to.

The clause, as amended, was agreed to.

Clause 83.-No money shall be drawn from the Treasury of the Commonwealth, except under appropriation made by law.

Mr. BARTON (New South Wales).-I beg to move-

That at the end of clause 83, there be added the words "but until the first appropriation the Governor-General in Council may draw from the Treasury, and expend, such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth under this Constitution."

This is an amendment of substance, which I will explain in a few words. Clause 83 means that no money can be spent unless Parliament passes an Appropriation Act. But before Parliament is in existence certain departments will have been transferred to the Commonwealth. These departments will have to be administered by the Commonwealth, and that will necessitate expenditure for the maintenance and continuance of the departments.

Mr. ISAACS.-How about the expenses of electing the first Parliament?

Mr. BARTON.-That might have to wait. One is so chary about giving power to spend money that is not appropriated by law that I and my colleagues on the committee have endeavoured to keep the power down as low as possible, so as to confine it to expenditure absolutely necessary for the administration of departments.

Sir JOHN FORREST.-What would happen if the Government of the day did spend the money? Could the High Court do anything?

Mr. BARTON.-Well, I am not quite sure about that. I do not think Sir John Forrest need have any particular apprehension that any of the results which he thought was threatened when the previous discussion was going on will come about.

Sir JOHN FORREST.-It is a very important matter.

Mr. BARTON.-The amendment reads "but until the first appropriation the Governor-General in Council may draw upon the Treasury, and expend, such money as may be necessary for the maintenance of any department transferred to the Commonwealth under this Constitution." It is obviously clear there must be some expenditure, and it is provided in the clause that no money shall be drawn from the Treasury except under appropriation made by law. If the amendment were not passed, [start page 1897] the Executive, in the organization of the departments, must be hampered. It is obvious that some provision must be made. No provision can be made by Parliament until Parliament is in existence, and any payments made in the interval would, at any rate, be technically breaches of the Constitution, unless they are provided for in the way the amendment suggests.

Mr. ISAACS.-Would the honorable gentleman not be disposed to say-"Until the first meeting of Parliament"?

Mr. BARTON.-I doubt whether that would be any good. You cannot expect Parliament to pass an appropriation immediately it meets. I take it for granted that possibly the first meeting of Parliament

will be employed in providing for necessary expenditure of the Commonwealth, and that the « session » will be a financial « session » to begin with. Provision must be made for the ordinary services of the year, and that being done, an Appropriation Act will have to be passed. Under the circumstances, it may be Parliament would not care to sit after an Appropriation Act had been passed.

Mr. HIGGINS.-Are you not making the first Ministry independent of any appropriation? Are you not making the Ministry independent of Parliament, in the sense of enabling Ministers to say-"Oh, if you don't give us an Appropriation Act we can still spend."

Mr. BARTON.-I quite agree that is what might be urged against the clause. But the difficulty is that unless you pass the amendment you drive the Executive Government into making a daily infringement on the Constitution. If you begin the Constitution by having a daily infringement of that sort, you altogether weaken the authority of the prohibition against any appropriation which is not made by law.

Mr. HIGGINS.-The answer given before, when this matter was discussed in Sydney or Adelaide, was that the Ministry would draw expecting to be indemnified.

Mr. BARTON.-Expecting to be indemnified by Parliament; but in drawing in that way they would be making a daily breach of the Constitution. Is it not better under all the circumstances of the case that the first Ministry should be invested with a power to draw so long as that power was limited to the necessary maintenance of departments? The department of Customs and Excise will go over at once to the Commonwealth, and salaries must be paid month by month. By proclamation the Commonwealth will take over the Postal and Telegraph, Quarantine, and other departments, and necessarily there must be an expenditure of money for the upkeep of these departments. If the Commonwealth have to expend money in this way, why should we enact that such expenditure is a breach of the Constitution? When we have that expenditure within our knowledge, why should we take such a step as to necessarily cause the first Ministry to make a breach of the Constitution?

Mr. FRASER.-There is no danger.

Mr. BARTON.-There is.

Mr. FRASER.-But there is no danger of the first Federal Ministry spending improperly.

Mr. BARTON.-There is no danger of the Ministry spending improperly, because, as has been pointed out, if they have to get an indemnity they will have to look out as to what they do. But, at the same time, they would be breaking the Constitution, and I do not think they should do so. We ought to provide a limited authority for the necessary expenditure for the upkeep of the departments before Parliament meets, and Parliament, when it meets, can make an appropriation. I do not see any serious difficulty in the amendment.

Mr. HOLDER (South Australia).-There are two points which I want to suggest to the consideration of the leader of the Convention. The first is whether the words of the amendment will cover the expenses of the first election of the House of Representatives?

[start page 1898] Mr. BARTON.-No, they will not.

Mr. HOLDER.-Then would it not be wise to insert, after the word "for," the words "the first election of Parliament and," or such other words as the Drafting Committee may suggest? The next point is that the clause, as it stands, to which the words of the amendment are proposed as an addition, is a little bare. While on the general principle, I think, no objection could be taken, yet still we all know there are emergencies which arise. There is such an emergency as the necessity for quarantine. I

see that a vessel has just arrived on the west coast with smallpox on board, and it is possible that the Government there, in the emergency, might be run into an expenditure of thousands of pounds.

Sir JOHN FORREST.-We will spend it all right.

Mr. BARTON.-That is covered by the clause as amended.

Mr. HOLDER.-I am speaking of the clause as it stands, and as the position would be after the first appropriation. Under the clause there undoubtedly would be excess expenditure from time to time to provide for such cases as that of quarantine. Such expenditure would be a breach of the law, and whether or not some words should be inserted in clause 83 to cover such contingencies is worth consideration. It might be provided that expenditure necessary in such emergencies might be incurred, provided that the approval of Parliament was obtained within a time specified. Although every excess is covered by an Excess Bill, still the expenditure is a breach of the Constitution, and the point I have suggested is worth consideration.

Mr. BARTON (New South Wales).-I doubt whether such a suggestion would be wise after Parliament is once constituted. You must then leave the Ministry responsible to Parliament, which has the power to indemnify the Ministry if any expenditure of the kind is incurred during recess. My only object is to prevent the expenditure I have mentioned being regarded as a breach of the Constitution. I have no objection to the insertion of the words Mr. Holder referred to as to the expenses of the first election of the House of Representatives. That might cover the other part of the ground.

Mr. KINGSTON.-Could the Treasurer be restrained from going to excess of expenditure by an injunction?

Mr. BARTON.-I doubt it very much.

Mr. KINGSTON.-That is a very strong proposal, you know.

Mr. ISAACS (Victoria).-I feel no doubt that the court would not grant an injunction.

Mr. BARTON.-I do not think that in any such case an injunction would be granted. It could be granted, but I do not think the court would grant it.

Mr. ISAACS.-In similar cases the courts have held that where it is a matter to a large extent of discretion as to what is necessary, they would not grant an injunction. Even in the case of a tax unless the tax were unconstitutional, the, courts would not grant an injunction.

Mr. BARTON (New South Wales).-In New South Wales, about five years ago, when taxes brought down in the Budget and not sanctioned by law, were collected there was an attempt to bring a mandamus against the Collector of Customs-I think it was in the form of a mandamus-to compel him to admit some important articles free of duty under the Customs Act. The court said they must decline to exercise any such power at all, and that it was a matter in which they could not restrain an officer. That is a similar case.

Mr. ISAACS (Victoria).-That is a similar case. I agree with Mr. Holder that it would be better to put in a provision for the first election. That is what I meant when I interjected in regard to the first Parliament. But while we ought to have a provision of this nature, we ought to make it as narrow as we possibly can, consistently with meeting the necessity of the case.

[start page 1899] Mr. BARTON.-Hear, hear; I quite agree with you.

Mr. ISAACS.-I think we might fairly ask Mr. Barton to omit the word "appropriation," and insert the words "first meeting of Parliament."

Dr. COCKBURN.-Say, until a month after the first meeting of Parliament.

Mr. ISAACS.-No; until the first meeting of Parliament. When Parliament meets it will be alive to the necessity of providing for the immediate demands of the state. From the moment Parliament exists and is ready for work the responsibility of the Ministry ought to commence.

Mr. BARTON.-You must allow the Executive to pay salaries up to the expiration of the current month. I think Dr. Cockburn's suggestion would meet the case.

Mr. ISAACS.-I have no objection, provided there is a limit. We must recollect that Parliament is powerless to pass an appropriation until the Ministry think fit to bring down a message from the Governor-General. Therefore, I think it is right, taking that into consideration additionally, we should say that until a month after the first week of the Parliament the Governor-General in Council may have that power. I think we ought to limit it in that way-

Mr. BARTON.-I will accept that.

Dr. COCKBURN (South Australia).-I quite agree with the last speaker. A large responsibility will rest on the formation of the first Executive. We will imagine the case of Parliament being called together, and the first Executive not having the confidence of the House. What is the usual mode in which the House expresses in the last resort its want of confidence in the Executive? It refuses Supply, and the very fact of its refusing to make an appropriation will establish the Government as more omnipotent than ever.

Mr. BARTON.-I have accepted the amendment which Mr. Isaacs has suggested.

Dr. COCKBURN.-If the honorable member had said so, I would not have risen.

Mr. BARTON.-I said so, and I thought that the honorable member heard me.

Dr. COCKBURN.-I was only advancing this as a very cogent reason indeed for making the amendment, because otherwise the refusal of supply would place the Government in a better position than if an Appropriation Bill were passed.

Mr. BARTON.-I beg to move-

That the amendment be amended by the omission of the words "the first appropriation of," with a view to the insertion in their place of the words"-the expiration of one month after the first meeting of the Parliament."

The amendment was amended accordingly.

Mr. HOLDER (South Australia).-I would suggest to the leader that the words "before the elections or" be inserted after the word "necessary."

Mr. BARTON (New South Wales).-I would rather have that later on, because the maintenance of this department is the first duty which the Government will have to do and then will come later on a provision for the elections. I beg to move-

That the amendment be amended by the addition of the words "and for the holding of the first elections of the Parliament."

The amendment was amended accordingly, and was then agreed to.

The new clause, as amended, was agreed to.

Clause 85 (Transfer of officers),

Mr. BARTON (New South Wales).-I beg to move-

That clause 85 be omitted, with the view to the insertion in its place of another clause.

The redraft of this clause has been circulated. It has been redrafted in consonance with the suggestions which were made to the Drafting Committee during the debate on the clause, and also by inserting in substance the amendment which was carried, and the amendment of Western Australia which Sir John Forrest [start page 1900] supported, and which was only formally negatived on the understanding that it should be in some shape inserted. The new clause provides that when a department becomes transferred to the Commonwealth-that will be in the care of Customs and Excise at once, and in the case of the other departments when transferred under proclamations-then all the officers of that department shall become subject to Commonwealth control, but when an officer is not retained in the service of the Commonwealth he shall be entitled to receive from the state any pension-that is the word inserted according to the feeling of the committee-gratuity, or compensation which would have been payable to him under the law of the state if his office had been abolished. That is to take effect unless he is appointed to some other office of equal emolument in the state to which he belongs. It also provides that any officer who is retained in the service of the Commonwealth shall not lose any of his existing rights or rights accruing, that is to say, that the transfer to the Commonwealth service shall not prejudice him, and that he shall be entitled to retire from office at the time he would have been entitled to retire under the law of his state, and on the same pension or retiring allowance which he would have got from his state, that is to say, in the same way that would take place if his services to the Commonwealth were simply a continuance of the state service. Then the Commonwealth is charged with the payment to him of that pension or retiring allowance, but the Commonwealth is entitled to charge the state, and to be paid by the state, the state's proper proportion thereof, and that is to be calculated on the proportion which his term of service with the state bears to his whole term of service at the time of his retirement; so that the state pays absolutely its proportion. And in this case-this is the Western Australian amendment-the salary on which the calculation is made shall be taken to be the salary he was receiving at the date of his transfer to the Commonwealth.

Sir JOHN FORREST.-Is it to the proportion payable by the state that the calculation applies?

Mr. BARTON.-The Commonwealth pays the pension or retiring allowance, but it charges back to, and is paid by, the state a part thereof, to be calculated in the proportion I have named, and it is to that proportion payable by the state that this calculation applies. That carries out the amendment of my right honorable friend.

Sir JOHN FORREST.-The whole pension is calculated on the whole service.

Mr. BARTON.-We ventured to make an addition to the clause which, I think, will meet with the approval of honorable members. There will be cases in which officers will be transferred to the Commonwealth, not with the department in which they have been serving; their departments may not be transferred at all, but they may be officers necessary to the service of the Commonwealth, and there may be the consent of the Governor in Council of the state obtained to their being transferred. In that case they should not be prejudiced either. I think honorable members will admit that if a case of that kind arises, and the Commonwealth wishes to have the services of an officer, and it is arranged with the state he is serving that he shall be transferred to the Commonwealth, that transfer should not be carried out without his rights being preserved.

Mr. HIGGINS.-If he belongs to no department?

Mr. BARTON.-He must be an officer who at the establishment of the Commonwealth is serving in the public service of a state, but he may not belong to one of the departments transferred. There will be cases of officers of considerable ability whom the Commonwealth may wish to have in its service, and they may arrange with the [start page 1901] state for their transfer to the Commonwealth. That is a case which is not provided for in the clause, and it appears to us to be a case of extreme hardship for an officer if his rights were not preserved to him. We have arranged to preserve them in this way: A person who, being at the establishment of the Commonwealth an officer in the public service of the state, when be is taken over with the consent of the Governor in Council of the state, shall have the same rights as if he was an officer of a department transferred to the Commonwealth, and had been retained in the service of the Commonwealth. I think that is manifestly just.

Sir EDWARD BRADDON (Tasmania).-I entirely approve of the major part of the amendment suggested here, inasmuch as it protects members of the civil service, but I think in the latter part of paragraph (3) there is some necessity for making a slight amendment. It says-

and for the purpose of the calculation his salary shall be taken to be that paid to him by the state at the time of transfer.

That is to say, as a matter of account between the Commonwealth and the state, the Commonwealth shall charge the state with a pension based, for the purpose of calculation, on his salary at the time when his services were taken over. That might work out unjustly as regards the state.

Sir JOHN FORREST.-No.

Sir EDWARD BRADDON.-I think so. In the great majority of instances-I believe in every instance where a pension is granted-that pension is based not upon the salary drawn by an officer on his retirement or resignation, but on the average of his salary for a term of years.

Mr. DEAKIN.-It is three years with us.

Sir EDWARD BRADDON.-It is usually from three to five years.

Mr. BARTON.-Is it worth while fighting for?

Sir JOHN FORREST.-It is not worth bothering about.

The clause was omitted.

Mr. BARTON.-I beg to move-

That the following stand clause 85:-

When any department of the public service of a state becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth.

Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the state, be entitled to receive from the state any pension, gratuity, or other compensation payable under the law of the state on abolition of his office.

Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time and on the pension or retiring allowance which would be permitted by the law of the state if his service with the Commonwealth were a continuation of his service with the state. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the Commonwealth shall charge to and be paid by the state a part thereof, to be calculated on the proportion which his term of service with the state bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the state at the time of transfer.

Any person who, being at the establishment of the Commonwealth an officer in the public service of a state, is with the consent of the Governor in Council of the state transferred to the public service of the Commonwealth, shall have the same rights as if he were an officer of a department transferred to the Commonwealth, and had been retained in the service of the Commonwealth.

The new clause was agreed to.

Clause 86 (Transfer of land, buildings, vessels, &c.),

Mr. BARTON.-I beg to move-

That clause 86 be omitted, with the view to the insertion of another clause in its place.

The clause was omitted.

Mr. BARTON (New South Wales).-I beg to move-

That the following stand clause 85A:-

When the control of any department or service of a state is transferred to the Commonwealth under this Constitution

I. All property of the state, of any kind, used exclusively in connexion with the department or service, shall become vested in the Commonwealth; [start page 1902] but in the case of the departments controlling customs and excise and bounties for such time only as the Governor-General in Council may declare to be necessary.

II. The Commonwealth may acquire any property of the state, of any kind, used but not exclusively used in connexion with the department or service; the value thereof shall, if no agreement can be made, be ascertained in as nearly as may be the manner in which the value of land, or of an interest in land, taken by the state for public purposes is ascertained under the law of the state in force at the establishment of the Commonwealth.

III. The Commonwealth shall compensate the state for the value of any property passing to the Commonwealth under this section; and if no agreement can be made as to the manner of the compensation, it shall be determined under laws to be made by the Parliament.

IV. The Commonwealth shall, at the date of the transfer, assume the current obligations of the state in respect of the departments or services transferred.

It will be necessary to make some explanation of this clause, because it goes perhaps beyond mere drafting. It only goes beyond a mere change of draft of the clause, owing to those of the suggestions made in committee which we thought proper to accept. The original clause provided for the taking over of property necessarily appertaining to or used in connexion with any of the departments of the public service transferred to the Commonwealth either absolutely, or, in the case of the Customs and Excise departments, for such time as may be necessary. It was pointed out by several honorable

members that there may be a property used partly for a department transferred to the Commonwealth and partly for state purposes which are not the subject of a transfer, that it would involve the passing over of a property not exclusively used, but partly used, for such a purpose, and that the Commonwealth would get what it wanted, but that the state had parted with more than it; was necessary to give to the Commonwealth, That we have dealt with in this new clause.

Sir JOHN FORREST.-We wanted to have it done with the consent of the state.

Mr. BARTON.-The feeling of the committee was this, that those things which were exclusively used for the department transferred should go over at once to the Commonwealth, while those that were not exclusively used might be left to an agreement between the Commonwealth and the state, that is to say, that there should be an option. We have provided for an option.

Sir JOHN FORREST.-How?

Mr. BARTON.-It is also provided-and, I think, with the generally-expressed desire of honorable members-that, instead of the Commonwealth having to pay the "fair value," which might mean the value in cash, the matter may be arranged between the parties, and, in the failure of any agreement, according to the provisions of an Act passed by the Parliament. The substance of the new clause is that, when any department or service is transferred to the Commonwealth, either at once, as in the case of the Customs and Excise department, or as provided for under clause 69, if the property transferred is used exclusively for the service transferred it shall become vested in the Commonwealth but in the case of the departments controlling customs and excise and bounties, only for such time as the Governor-General in Council may declare to be necessary. That is the only way in which we thought that the matter could be provided for.

Sir GEORGE TURNER.-Will the provision in the clause enable the Governor-General to make a declaration at any time?

Mr. BARTON.-I was coming to that. My right honorable friend will see that it will be necessary for the Commonwealth to pay the value of this property in some form or other, if not in cash, perhaps in [start page 1903] stocks or bonds. The Governor-General must therefore, as a matter of practical necessity, declare for what tune the property is to be taken over by the Commonwealth in order that its value may be ascertained. As regards the property of a state used in connexion with the department or service which has been transferred to the Commonwealth, but not used exclusively by the Commonwealth, it is provided that its value shall be ascertained by agreement between the parties, if possible, but if no agreement can be come to, the value must be fixed according to the provisions of the Lands for Public Purposes Acquisition Acts, or corresponding Acts in force in the colon to which the property to be transferred belongs. We provide that the states shall be compensated by the Commonwealth for property which passes under the clause, but if no agreement can be come to as to the manner of compensation, it shall be determined by a law passed by the Commonwealth Parliament.

Mr. HIGGINS.-But the Commonwealth Parliament will be one of the parties to the purchase.

Mr. BARTON.-No; the Executive Government will be a party to the purchase. There must be some authority to determine the mode of compensation. It is the second sub-section which provides for the ascertaining. of the value. A separate sub-section makes provision for the manner of the compensation, that is to say, whether the compensation shall be in cash or bonds, or in some other way. Clearly, the High Court could not determine a matter of that kind. It is a matter of political arrangement between the Commonwealth and the state.

Sir JOHN FORREST.-Will it be optional with the state to say whether property shall or shall not be handed over?

Mr. BARTON.-If my right honorable friend will look at sub-section (3) he will see that it is not the state but the Commonwealth which has this option. Of course, the Commonwealth, as a general rule, will not take over property except such as is to be exclusively used for a service that has been transferred to it.

Sir JOHN FORREST.-The clause does not contain the words "with the consent of the state."

Mr. BARTON.-That is so, but you cannot carry a, sale into effect without knowing the price. The price is a condition to be determined before the sale is made.

Sir JOHN FORREST.-I thought that where property was not to be used exclusively by the Commonwealth there was to be no absolute power in the Commonwealth to take it over.

Mr. BARTON.-I understood that the feeling of the committee was that the Commonwealth should have the option of saying whether it would or would not take over any property, but that the state should be able to arrange with the Commonwealth as to the price to be paid for any property taken over. If the parties cannot agree, the price is to be determined according to the law of the state in regard to the acquisition of property for public purposes.

Mr. KINGSTON.-Is there any special reason for providing for two special modes of ascertaining the value of property?

Mr. BARTON.-There is no attempt to provide for two different modes of ascertaining the value. The second sub-section provides for the ascertaining of the value, while the « third » sub-section provides only for the manner of the compensation. That was one of the most difficult clauses in the Bill to redraft, because of the very nature of its provisions. There are the three cases to be considered. There is the property exclusively used for a transferred service; that goes over to the Commonwealth absolutely, except in the case of departments controlling customs and excise and bounties, in which case it goes over to the Commonwealth only for a time to be declared by the Governor-General in [start page 1904] Council. Then you come to the ascertaining of the price where property is used by the Commonwealth, but not exclusively used by it, in connexion with any transferred department or service. In this case the value is to be ascertained by agreement, or, failing that, by the ordinary law in force in the state for the ascertaining of the value of property acquired by the Government for public purposes.

Sir JOHN FORREST.-The Commonwealth might take a quarter or half of a building.

Mr. BARTON.-I do not think that is likely. There would probably be some arrangement made by which either the state or the Commonwealth would take over the whole building. Then we come to the manner of compensation, which is to be decided by agreement, if possible, but, if no agreement can be come to, by the provisions of an Act passed by the Parliament of the Commonwealth. I strongly object to any one being a judge in his own cause, but in this case you do not allow one of the parties to determine his own cause, because the Parliament of the Commonwealth will not be a party to the transaction, but a body in which all the states will be represented. The fourth sub-section deals with that part of clause 69 to which the honorable and learned member (Mr. Higgins) objected. At his instance, I consented to agree to the striking out of the last two words of that clause. The provision finds its proper place in this clause, where there is a distinction between the price and the liabilities taken over.

Mr. ISAACS.-Do the words "any property passing to the Commonwealth," which occur in sub-section (3), include property dealt with in sub-section (2)?

Mr. BARTON.-The « third » sub-section provides for the manner of compensation in regard to any property passing to the Commonwealth. The matter was the subject of a long debate here. Honorable members, the Right Hon. Sir George Turner amongst them-suggested that the value need not

necessarily be paid in cash, but that there might be some provision for an arrangement between the parties as to the mode of paying it.

Mr. ISAACS.-Ought you not to put in the words "manner of the payment of compensation"?

Mr. BARTON.-I think that the words "manner of compensation" are sufficient. The price will have been ascertained beforehand.

Mr. HIGGINS (Victoria).-May I ask the honorable and learned member a question in regard to a practical difficulty? A custom-house is not an easy property to sell or to value. Is there not, therefore, need of a provision defining the basis of valuation which is to be applied? I suppose a big building like the Custom-house in Sydney or Melbourne is not to be valued upon the basis of the receipts for the last few years?

Mr. BARTON.-I suppose not, unless my honorable and learned friend is going to suggest an amendment to that effect.

Mr. HIGGINS.-The question is one of great practical difficulty. You can value the land easily enough, but not the buildings.

Mr. BARTON.-The Acts dealing with the taking over of land in any state deal also with the taking over of buildings, so far as I know.

Mr. HIGGINS.-Yes, but the value of a building like a custom-house, a state school, or lands titles office, would depend very much upon the use to which it could be put.

Mr. BARTON.-There will be no good will to take over. I suppose that any authority wishing to arrive at a valuation would ask the question-"What did this building cost to build?" or "For what could a building of this kind be built?"

Sir PHILIP FYSH (Tasmania).-I was waiting for the presence in the chamber of the right honorable member (Sir George Turner), because I presume that the last few words of sub-section (1) will apply [start page 1905] more to border custom-houses than to other property. After seven years, the Commonwealth will find many of these custom-houses unnecessary, and it is provided that they may then be thrown upon the hands of the states.

An HONORABLE MEMBER.-This provision will apply only to border custom-houses.

Sir PHILIP FYSH.-Not only to border custom-houses. It will also apply to custom-houses at places like Hobart and Launceston.

Mr. HOLDER.-Those custom-houses will always be wanted.

Sir PHILIP FYSH.-The words to which I refer are these:-

But in the ease of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary.

Mr. HOLDER.-That provision is to enable the Commonwealth to give up such border custom-houses as they may not require after seven years.

Sir PHILIP FYSH.-The Commonwealth might wish to move the Custom-house from Melbourne to some other place. Of course that may be a far-fetched assumption; but in the case of a town like Launceston, the Commonwealth might desire to give up the Custom-house, and to collect the customs

duties at some other place upon the river. In such a case the building would be thrown upon the state, though it would be useless for any other purpose than that for which it has been designed.

Mr. HOLDER.-The Federal Parliament will not be a body of foes.

Sir PHILIP FYSH.-Certainly not. No one has trusted more to the future in connexion with this matter than I have, and I desire to continue my confidence in the Federal Parliament. But I should like some explanation of this provision, or, at any rate, to call the attention of honorable members to some of the difficulties which it may create.

Mr. GORDON (South Australia).-Does not sub-section (4) involve the Commonwealth in the obligations of the states in regard to contracts entered into with officers of departments and services transferred? The first part of this clause contemplates the taking over of the officers chosen, but the concluding part of it seems to imply that the whole of the current obligations in regard to the departments are to be taken over. These obligations would include the contracts with the officers. An exception should be made of the obligations of the public servants, and that might be done by inserting after "state" the words "except as regards public officers."

Mr. O’CONNOR (New South Wales).-it is necessary to have some clause of this kind in the Bill. When a department is taken over it will, no doubt, have some contracts.

Mr. HIGGINS.-Postal contracts, for example.

Mr. O’CONNOR.-Yes, there will be a number of matters of that sort that it will be necessary to transfer. The obligations of the departments to their officers are dealt with differently. The proclamation of the Commonwealth will no doubt be arranged in such a way that there will be no difficulty in ascertaining what those obligations are. I do not think there is any need for the alteration the honorable member suggests.

Mr. GORDON (South Australia).-I do not think the honorable member has quite followed me. Part of the current obligations would be the contracts made by the state with its officers. It is not contemplated that the Commonwealth shall take over all the officers, but only such officers as it requires. If we stipulate that the Commonwealth shall take over every current obligation, would not that imply the taking over of the whole of the officers?

Mr. O’CONNOR (New South Wales).-I understood the honorable member, but [start page 1906] what is the contract between the Government and its officers? It is a contract that is terminable at any time at the will of the Government? The current obligations means only the obligations which exist at the time of taking over, and if there is any money due to a public servant at that time there is no reason why the Commonwealth should not pay it.

Mr. GORDON (South Australia).-Right up to the moment of the establishment of the Commonwealth all these officers would be in the full employment of the state.

Mr. O’CONNOR.-Yes; but there is no right to continued employment, and there is, therefore, no obligation taken over.

Mr. GORDON.-It might not be an absolutely legal obligation, but no Government in the world would discharge its officers in that way without compensation.

Mr. O’CONNOR.-Undoubtedly.

Mr. GORDON.-Then the Commonwealth would either have to take over the whole of the officers or give compensation to those who were not required, or retain them until vacancies occurred which they could fill.

Mr. O’CONNOR.-Clause 85 provides for all that.

Mr. GORDON.-There is a contradiction between the two clauses. If the honorable member is quite satisfied that the matter is clear, I am not going to press the objection. But it seems to me that there is a possibility of an obligation resting on the Commonwealth that it ought not to be asked to assume.

The new clause was agreed to.

Clause 90.-Until the imposition of uniform duties of customs-

I. The Commonwealth shall credit to each state the revenues collected therein from the duties of customs and of excise, and in the performance of the services and the exercise of the powers transferred from the state to the Commonwealth under this Constitution.

II. The Commonwealth shall debit to each state-

(a) the expenditure therein of the, Commonwealth in the collection of duties of customs and of excise, and in the performance of the services and the exercise of the powers transferred from the state to the Commonwealth under this Constitution.

(b) the proportion of the state, according to the number of its people, in the expenditure of the Commonwealth incurred by reason of the original powers given to it by this Constitution.

But any expenditure of the Commonwealth originated by the requirements of the Commonwealth in respect of services or powers transferred and not incurred solely for the maintenance or continuance, in any state, of the services existing at the time of the transfer shall be taken to be incurred by reason of the original powers given to the Commonwealth by this Constitution.

III. The Commonwealth shall pay to each state, month by month, the balance (if any)in favour of the state.

Mr. O’CONNOR (New South Wales).-I beg to move-

That sub-section (1) be amended by the omission of all the words after "therein."

Sir GEORGE TURNER.-How will it read? I cannot understand the amendment. There must be a mistake.

Mr. O’CONNOR.-There is no mistake about it. If the honorable member will read the clause he will see that it begins "Until the imposition of uniform duties of customs." Then it says-"The Commonwealth shall credit to each state the revenues collected therein." That is on the one side, and then on the other it says-"shall debit to each state the expenditure therein of the Commonwealth" in the collection of duties of customs and of excise, and in the performance of the services and the exercise of the powers transferred from the state to the Commonwealth under this Constitution." The intention is to make a complete account on both sides. Under [start page 1907] clause 90 you account for the whole of the revenue collected in the state, and the revenue is of two kinds-that obtained from duties of customs, and that obtained from the transferred services. That is why the limitation is put in.

Sir GEORGE TURNER.-You simply say-"The Commonwealth shall credit to each state the revenue collected therein." That would mean the whole of the revenue of the state.

Mr. O’CONNOR.-No, you are dealing with the Commonwealth collections, and it is not necessary to say-"shall collect the revenues of the Commonwealth therein." That is implied.

Mr. HIGGINS.-It may be implied, but if you put "Commonwealth" before "revenues" it might save trouble.

Mr. HOLDER.-The Commonwealth have nothing to do with any other revenues but their own.

Mr. O’CONNOR.-We are dealing with their revenues.

Mr. ISAACS.-Until they impose Uniform duties of customs they are state revenues.

Mr. O’CONNOR.-With all respect to the honorable member, I say that they are revenues collected under the laws of the state, but collected by the Commonwealth in the state. A credit and a debit account is to be kept in the Treasury books of the Commonwealth. I do not see that there is any difficulty. The honorable member (Sir George Turner) will see that the reason for striking out these words is that they are really unnecessary, because the account must include the whole of the revenues of the state collected by the Commonwealth.

Mr. HOLDER (South Australia).-There is a clerical error in the amendment, and what should be done is to strike out all the words after "therein."

Mr. BROWN (Tasmania).-I should like to know whether, in the absence of any express words, it will be perfectly clear that the revenues intended are only the revenues collected on account of the Commonwealth? I should like to ask Mr. O'Connor if it is necessary to put that in? In Tasmania we have a special police rate which forms part of the revenue of the state, and I have no doubt in other colonies there are also special rates. I think some words expressly conveying our meaning as to the revenues intended should be put in so as to state that the revenues are to be those collected on account of the Commonwealth, otherwise there may be some little misunderstanding.

Mr. HENRY (Tasmania).-It appears to me we want some explanation why these words should be struck out. The language is so explicit as to the revenues we are dealing with that I should like Mr. O'Connor to explain why they should be struck out?

Sir GEORGE TURNER.-Because they are not necessary.

Mr. HENRY.-The language in the clause seems so clear and explicit, as conveying the intention we all understood with regard to the clause, that I should like to hear some justification for striking out these words.

Mr. HOLDER (South Australia).-I would suggest to the honorable member (Mr. O'Connor) that he should make the first sub-section harmonize with the second. In the second sub-section we have the words "the expenditure therein of the Commonwealth." Why not make the first read "The Commonwealth shall credit to each state the revenues collected therein of the Commonwealth"?

Mr. O’CONNOR (New South Wales).-I have no objection to that, and I am obliged to the honorable member for the suggestion. With regard to Mr. Henry's question, I quite agree with the honorable member that the words as they were in before were clear enough, but one of our objects is not only to have the form of the Bill clear, but also to have no unnecessary verbiage in it. Inasmuch as the words which we are dealing with must include the whole of the revenue of the state collected by the Commonwealth in the state, there is no [start page 1908] necessity to distinguish the whole of the revenue of the state taken over, that is to say, Customs, Excise, and the transferred services. They are the only revenues of the state which will be collected by the Commonwealth. Therefore, there is no necessity to describe them. I think if the suggestion of Mr. Holder is carried out it puts the matter beyond all doubt. I beg to move-

That after the word "therein" the words "by the Commonwealth " be inserted.

The amendment was amended accordingly, and was then agreed to.

Mr. O’CONNOR (New South Wales).-I beg to move-

That, in sub-section 2 (a), after "Commonwealth," where it first occurs, omit remainder of sub-section, and insert "incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the state to the Commonwealth other than the departments of naval and military defence, lighthouses, lightships, beacons and buoys, and quarantine."

This is merely a drafting amendment as to the first part, and as to the second part it embodies a very important amendment suggested by Dr. Quick, that is to say, it makes from the beginning one of the original expenditures of the Commonwealth: Naval and military defence, lighthouses, lightships, beacons and buoys, and quarantine. These are services in respect of which no revenue is collected, and therefore they ought not to go into the accounts against the state. In addition to that, they are matters in which the whole Commonwealth are concerned from the very first. As there is no revenue coming from them-

Mr. ISAACS.-Is it correctly printed after "Commonwealth" where it secondly occurs?

Mr. O’CONNOR.-Yes.

Mr. HOLDER (South Australia).-This was a matter very carefully considered in the Finance Committee, and concerning which we arrived at a very definite conclusion. If necessary, I am quite prepared to make a long speech on this subject to show cause why we should not retrace our steps now. I beg to move-

That all the words in the amendment after the word "Commonwealth"-"other than the departments of naval and military defence, lighthouses, lightships, beacons and buoys, and quarantine" be struck out.

If that does not accomplish my object, I should be glad if Mr. O'Connor would tell me so.

Sir GEORGE TURNER (Victoria).-I strongly oppose any amendment of this kind. I think the Bill ought to be left as it is. In 1891, in New South Wales, the system was adopted that the collections should be returned to the states, less a per capita charge for all the expenditure, and that is the strong point that was raised against that Bill. If we are to have a per capita system for expenditure I do not object, if you have a per capita system for the receipts as well; but I am certainly going to object as strongly as I can to any system by which we are going to divide the collection on a basis which means that you are going to charge a portion of the expenditure handed over on a per capita basis. This means an immense advantage, as was pointed out several times, to New South Wales.

Mr. O’CONNOR.-In what way?

Sir GEORGE TURNER.-Because your expenditure for defence is far more per capita than it is with us.

Mr. REID.-May not the Commonwealth spend less?

Sir GEORGE TURNER.-The Commonwealth will not spend less, because we know that we have cut down our expenditure to the lowest point.

Mr. O’CONNOR.-According to this it is per capita.

Sir GEORGE TURNER.-According to the amendment as put; that is what I object to. I am perfectly prepared that we shall follow out the Bill, which provides that whatever expenditure is incurred in the colonies with regard to the different matters handed over shall be charged against the colonies, and the [start page 1909] balance of the receipts shall be handed over to them. But I do object to having a system under which you are going to have a portion charged on the actual expenditure, and another portion charged on another system altogether. This was one matter which I brought forward when this question was being, discussed. I have always contended that the per capita method should start from the first, but a compromise was arrived at in the Finance Committee on the basis that, if we are not to have a per capita method from the start, we should not charge any portion of the expenditure on a per capita basis unless we charged the receipts on a per capita basis.

Mr. MCMILLAN.-Better leave it as it is, or there will be a big fight over it.

Sir GEORGE TURNER.-Certainly there will be a big fight over it, as far as I am concerned.

Mr. HENRY (Tasmania)-I hope the committee will not leave the amendment as it is. It was clearly understood that we were to adopt the system of keeping separate collections of revenue for each state, and that accounts of the separate expenditure of each state should also be kept. In this matter of the defences alone, the expenditure on which is proposed to be made a charge per capita, there is a difference of from 4s. 10d. per head in New South Wales to 1s. 1d. in Tasmania. The expenditure on defences for New South Wales, according to the table published by Mr. Fenton, was in 1895-6, £205,000, or nearly £206,000, against Victoria's £163,000; and it was the recognition of the differences that existed in the expenditure of the several colonies that led us to accept the Financial Committee's scheme as submitted to and approved by this Convention.

Sir GEORGE TURNER.-We have not allowed for new expenditure on the defences.

Mr. HENRY.-It is provided in the Bill that any new expenditure on naval or military defences of an exceptional character is to be borne per capita by the several colonies; but I am quite satisfied that a proposal that will lay on Tasmania the burden of an additional £16,000 to £20,000 per annum on naval expenditure, as its share of the naval expenditure of the whole of Australasia, is a thing that Tasmania could not bear.

Sir JOHN FORREST.-That is not proposed.

Mr. HENRY.-I merely say that that would be the result of this amendment. Under the existing arrangement, as adopted by the Convention, each colony pays its own way, and Tasmania would therefore have to pay about 1s. 1d. per head; but under this proposed amendment we would be called upon to share in the expenditure of New South Wales, which is about 4s. 10d. per head. That is so obviously opposed to the whole plan of the financial scheme that I am sure the Convention will not entertain it for a moment.

Mr. MCMILLAN (New South Wales).-I think the arguments of Dr. Quick were absolutely unanswerable, but as we have settled down to the plan in the Bill, and as it would involve a considerable amount of reconstruction if we altered it, and further, as the whole matter is to be for five years only, and its alteration would cause a large amount of discussion, I think it would be better to leave the thing as it stands.

Mr. O’CONNOR (New South Wales).-I wish to explain that this amendment was made by the Drafting Committee because of a suggestion of Dr. Quick, which appeared to us at the time to have the assent of a very large number of the members of the committee. We had no intention of altering in any radical way the basis of arrangement which had been made, but supposed that this amendment represented what was at the time the feeling of the committee generally. Of course, this being a matter of policy, and as the financial members of the Convention have expressed themselves very strongly against the amendment, I have no desire to press it. Personally, I think [start page 1910] that the

reason suggested by Mr. McMillan would be quite sufficient for allowing the matter to remain as it stands.

Sir GEORGE TURNER.-As I read it the first part really hangs on the second.

Mr. O’CONNOR.-No, there is a sub-section which reads as follows:-

But any expenditure of the Commonwealth originated by the requirements of the Commonwealth in respect of services or powers transferred, and not incurred solely for the maintenance or continuance in any state of the services existing at the time of the transfer, shall be taken to be incurred by reason of the original powers given to the Commonwealth by this Constitution.

That was intended to provide for cases where the expenditure was not only for the up-keep of the services of departments transferred as they were handed over, but for some new services and new expenditure incurred necessarily by the Government of the Commonwealth, and for federal purposes.

Sir GEORGE TURNER.-We agreed to that.

Mr. O’CONNOR.-It was agreed that they should come under the head of original charges. The amendment will get rid of that difficulty.

Sir GEORGE TURNER.-It seems to me the clause carries out exactly what you want.

Mr. O’CONNOR-Instead of putting in the remaining words of sub-section (2) it is proposed to insert, after "Commonwealth," where it first occurs, the words-

incurred solely for the maintenance or continuance, as at the time of the transfer, of any department transferred to the Commonwealth.

Then the next amendment is to leave out certain words from paragraph (b), so as to make it read in this way:-

The proportion of the state, according to the number of its people, in other expenditure.

It is necessary, in order to preserve this system or method of dealing with the question, to amend the clause as I have indicated; but I am quite willing to strike out the words which Mr. Holder objects to.

Mr. ISAACS.-Is there any virtue in the word "department" as distinguished from "services" in the proposed amendment? Are there not transferred services that do not appertain to a department?

Mr. O’CONNOR.-No; in all these cases departments are transferred under clause 69.

Mr. Holder's amendment was agreed to.

Mr. HOLDER (South Australia).-I would like to ask Mr. O'Connor whether he would like to have inserted after the word "department" the words "of the service"?

Mr. O’CONNOR (New South Wales).-There is no necessity for that, because clause 69 expressly charges the Commonwealth with the control of departments. What we want to deal with is those departments as transferred. A department may be enlarged or a service may be performed in another way.

Mr. BARTON.-The word "services" was used in another part of the Bill as referring only to property used in the performance of the services.

Mr. O’CONNOR.-What we want to bring into the account is the expenditure on the departments, and that is what is provided for. All through we have maintained the same wording to indicate, not the general services only, but the departments in working order at the time when they are transferred to the Commonwealth.

Mr. ISAACS (Victoria).-This is a very important matter. There is no provision in clause 69 that the department of Customs and Excise shall be transferred, but it provides that "the control" of that department shall be transferred at a certain time.

Mr. O’CONNOR.-"The control and the functions."

Mr. ISAACS.-I think we should use the same words here. I am afraid there is some difficulty about it.

Sir GEORGE TURNER.-Put in the word "control," so as to say "the control of which is transferred from the state to the Commonwealth."

[start page 1911] Mr. BARTON.-That is a mere drafting amendment. I will see if it is necessary. I will make a note of it.

The amendment, as amended, was agreed to.

Mr. O’CONNOR (New South Wales).-I beg to move-

That, in paragraph (b) of sub-section (2) the word "other" be inserted before the word "expenditure," and that all the words of the sub-section after the word "expenditure" be struck out.

This is a consequential amendment.

Sir PHILIP FYSH.-May I ask how the provision will read after this amendment is carried?

The CHAIRMAN.-It will read as follows:-

(b) The proportion of the state, according to the number of its people in the other expenditure.

The amendment was agreed to.

The clause, as amended, was agreed to-

Clause 93B.-Notwithstanding the provisions as to free trade and intercourse between the states, the customs duties in the state of Western Australia as existing at the time of the imposition of uniform duties upon goods not originally imported from beyond the limits of the Commonwealth may, if the state thinks fit, continue to be collected for five years with a deduction of 20 per centum per annum (that is to say), with a deduction of 20 per centum for the second year, 40 per centum for the « third » year, 60 per centum for the fourth year, 80 per centum for the fifth year. At the end of the fifth year, customs duties on all such goods shall cease and determine.

Mr. BARTON (New South Wales).-This clause has been redrafted by the Drafting Committee to make more clear what we think is the intention of this committee, but no material alteration has been made in it. Honorable members will see for themselves how the clause reads now. We propose to put it into a little clearer form, which I think will meet with the view of Sir John Forrest. I beg to move-

That all the words after the word "Notwithstanding" (line 1) be struck out, and that the following words be substituted:-

anything in this Constitution, the Parliament of the state of Western Australia may, during the first five years after the imposition of uniform duties, impose duties of customs on goods entering that state and not originally imported from beyond the limits of the Commonwealth; and such duties (if any) shall be collected by the Commonwealth. But any duty so imposed on any article shall not exceed during the first of such years the duty chargeable on the article under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, « third , fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth respectively of such latter duty, and all such duties shall cease at the expiration of the fifth year after the imposition of uniform duties.

Mr. ISAACS (Victoria).-I would invite the attention of Mr. Barton to the last sentence-"all such duties shall cease at the expiration of the fifth year after the imposition of uniform duties." Does the honorable member think that that is restricted to goods as they pass from one state to another?

Mr. BARTON (New South Wales).-The word "goods" is only used before as to goods entering a state, and not going beyond the limits of the Commonwealth-that is to say, the intercolonial passage of goods, the duty on which is to cease at the end of five years. That is the object of the clause.

Sir JOHN FORREST.-Other goods will be subject to the uniform Tariff.

The amendment was agreed to.

The clause, as amended, was agreed to.

Mr. BARTON (New South Wales).-I beg to move-

That in clause 101 (line 1), after the word "state," there be inserted the words "on a subject within the legislative powers of the Parliament."

This is an amendment suggested by the right honorable member (Mr. Reid). The original reading of the clause was:-

When a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

And it is now proposed to insert words which will make the clause read:-

When a law of a state on a subject within the legislative powers of the Parliament is [start page 1912] inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

It may be a mere matter of drafting, but my recollection of Mr. Reid's suggestion was that the words should come in after the word "Commonwealth." They have been printed, rightly or not, after the word "state," and I think that must be a misprint. Even without the insertion of these words, the clause would be interpreted to mean what the words convey. As, however, there seemed to be at the time rather a desire to insert the words, and as they do not mar the Bill, I propose to insert them.

Mr. REID (New South Wales).-This struck me as a matter of very great importance. If my honorable friend (Mr. Barton) will look at clause 7 and also at clause 101, as they stand in the Bill, he will see that difficulty may arise. A law passed by the Commonwealth on a subject within its legislative powers might, in its operation, conflict with a law passed by a state on a subject on which the state retained exclusive powers-a subject over which the sovereignty of the state was left

unimpaired. Now, a very grave situation is raised, because clause 7 provides that the laws of the Commonwealth shall be binding on every state and every subject of the state. Clause 101 follows this up, and provides that when the law of a state is inconsistent with the law of the Commonwealth-it does not say what kind of law, but includes every law-the law of the state shall, to the extent of the inconsistency, be invalid. I do not think we propose the Constitution should be so framed that a state law passed on a subject left entirely to the state should "go down" before a law of the Commonwealth on some other subject without any rhyme or reason, an without any reference to any consequence which may follow. This is a very difficult matter, and I admit that the more convenient arrangement would be to let it alone.

Mr. ISAACS.-That would be the safest way.

Mr. REID.-But it would I am afraid, practically deny the sovereignty of the states over matters left entirely to the states.

Sir GEORGE TURNER.-The Federal Parliament will not have power to legislate on matters left entirely to the state. How, then, could the laws be inconsistent?

Mr. REID.-My honorable friend will see that although the subjects might be different they might affect the same thing.

Mr. ISAACS.-Give us an example.

Mr. REID.-Any number of examples could be given. In the United States Constitution similar words are found, and I propose to follow this amendment up by a proposal giving the Federal High Court jurisdiction to deal with any subject of conflict between a Commonwealth law on a Commonwealth subject, and a state law on a state subject.

Mr. ISAACS.-If there is any inconsistency between the Acts, you are going to let it remain.

Mr. REID.-I propose that the High Court, if there should be a matter involving wrong or loss to an individual or a state, should have jurisdiction to deal with the conflicting interests.

Mr. ISAACS-And which law is to prevail?

Mr. REID.-If we said which law was to prevail, we would foreclose the judgment of the court, which would have nothing left to decide at all. No matter how wrong the action of the Commonwealth might be as to state interests, it would have to go without adjudication, unless the question be referred to the High Court.

Sir GEORGE TURNER.-But is it not a question of policy which law ought to prevail? That ought not to be left to the High Court.

Mr. REID.-There seems to me a question of right under this. Surely the giving of sovereignty to a state on a subject is a mockery, if, when a law passed [start page 1913] by that state is found to be inconsistent or in conflict with the operation of a Commonwealth law on a Commonwealth subject, all the interest involved in the state and all the interest under the state law must go to the wall. The Commonwealth legislating on a subject within its jurisdiction might legislate with perfect propriety. A state dealing with a subject entirely within its power, over which subject the Commonwealth had no jurisdiction whatever, might also legislate with perfect propriety. But in the operation of these two pieces of legislation conflict might arise, causing injury to individuals. As the Constitution at present stands, however right and valid the exercise of the state jurisdiction was, the interests of the state would have to go down before the Commonwealth law. The High Court, under the present Bill, would have to say to the state-"Well, we are very sorry for you; this is a hard case; you are subject to a great deal of injury, but the Commonwealth Constitution provides that where there is any inconsistency or

variance the Commonwealth law must prevail." The state would "go down" without the merits of the question being gone into at all. These are circumstances which must give rise to a great deal of hardship and dissatisfaction. I would prefer if my honorable friend would not propose the amendment just now. I have given notice of an amendment dealing with this subject, and it would be more convenient if there were a postponement.

Mr. BARTON (New South Wales).-I shall certainly consent to a postponement, because it was Mr. Reid who suggested the amendment in the first instance. I do not so far see that the clause would have the effect Mr. Reid thinks it would have, or that the addition of the words "on a subject within the legislative powers of Parliament" does anything but make it clearer. A law passed by the Commonwealth Parliament would be a law passed within the legislative power of that Parliament, which has no other power. The words do not make the clause any more cogent, although they might be deemed to make it clearer. I have no objection to the insertion of the words, and if my friend would like to move an equivalent amendment, I will withdraw the present amendment.

Mr. REID (New South Wales).-I admit that this amendment, when understood, will raise a very serious question, and it is quite possible that my honorable friend may conceive it to be his duty to take a view opposite to mine on this question. I admit that it is a matter which may involve very serious consideration, but I deem it my duty to bring the matter before the Convention, so that it can never be said hereafter that it was not decided.

The amendment was withdrawn.

Mr. BARTON (New South Wales).-The Drafting Committee has prepared and circulated amendments redrafting the railway clauses. I have had the advantage of a conversation with my friend (Mr. Isaacs) on the subject, and he agrees with me that they correctly represent the sense of the committee on the subject. The difficulty which has arisen about them is that, by a clerical error, we took power to recommit clauses 95B, 95C, and 95D, instead of clauses 95A, 95B, and 95C, and, as by following the present procedure we should have to leave in the Bill something which is already redrafted by the suggested amendments, I propose to reserve them for the second recommittal.

Sir GEORGE TURNER.-They want a lot of altering.

Mr. BARTON.-No doubt they do. I think that what has been prepared will carry out the sense of the committee as expressed at the time. Whether the committee remains of the same opinion is another question. I think it would be a very good thing if, after we get through these amendments, honorable members could have a fair print of the Bill placed in their hands on Monday morning. If honorable members would like to do that they can secure it by not going into any very [start page 1914] debatable matter this afternoon. I could get an order to reprint before we separate, and the reprint would be in the hands of honorable members on Monday morning.

Sir JOHN FORREST.-Let us get on with a few more clauses.

Mr. BARTON.-I have to report the Bill now, and all I wish to do after reporting it now is not to go into committee again for the short space at our disposal this afternoon, but to get an order for reprinting. I am informed that I can get a reprint without a formal order if we report the Bill this afternoon, and no doubt we can get the matter into the hands of the printer.

Mr. HOLDER (South Australia).-There were put into the Bill the night before last, 140 amendments of the Drafting Committee which are not likely to come directly under our notice. Would it be possible for us within the next hour to run through these amendments, so that the leader of the Convention could indicate their nature? I have no doubt that we should be able to accept them all without debate, but I do not think it is one of those matters we should take absolutely on trust without having our attention called to each amendment which was made on that occasion. I do not know how otherwise they can come before us, because they are already in the Bill.

Mr. BARTON (New South Wales).-I think it would take longer than an hour to do it. I think an hour spent by my honorable friend with the Bill as amended in Sydney on one side, and the Bill as reprinted on the other side, as we have it now, would obviate the necessity for taking that course. Honorable members will see, I think, when they go through the amendments, that, unless in cases where the sense of the committee has been clearly expressed without an absolute amendment, no liberties have been taken with the work of the committee. But the amendments which have been made are merely questions of drafting, except where a clause has been allowed to pass as it stood with the intention that the amendment suggested in committee should be incorporated in the drafting. In those cases we have taken the liberty of putting them in, as practically acting under the instructions of the committee.

Sir JOHN FORREST.-It is difficult to see what words have been put in, as the amendments are not shown in different type.

Mr. BARTON.-A difficulty which has been raised is that these amendments are not put in block type. The reason that that was done was a very plain one. Honorable members desired to get a print of the Bill, I think it was yesterday morning. In order to do that it was only possible to print the Bill in the way we have done it, that is to say, the Bill as it left Sydney on the one side, and the Bill as theretofore amended up to Tuesday on the other side; but if the printer had got instructions to show the amendments by erased lines and block type, it would not have been possible to get the Bill ready till this morning-24 hours later. As honorable members were in a great hurry to have the Bill in their hands, we had to give instructions to have it done in that way.

Sir JOHN FORREST.-Can it be done by Monday?

Mr. BARTON.-We can get a reprint of the Bill on Monday, but if the other labour is to be cast on the printer of doing it in this form, there is a technical difficulty in the Printing office, because that kind of printing is most difficult and involves more care and labour in its execution than any other work you can impose on the printer.

Sir JOHN FORREST.-It would be of very great assistance to honorable members if it were done.

Mr. BARTON.-It might be of great assistance to honorable members.

Dr. COCKBURN.-Run lines underneath, or show the amendments within inverted commas.

[start page 1915] Mr. BARTON.-We would not get it by Monday then, I am told at the table. There is one thing we can do before we have the adjournment for two or three days for the purpose of finally getting the amendments into consistency. We might give directions then to have the Bill, as we get the sheets done, reprinted in that way. We can think over that. That might be an assistance to honorable members, but to try and get this done now would only prevent the reprint from being in their hands on Monday morning. After all, it only involves the very slightest labour in the world. If an honorable member who is not quite accustomed to legal phraseology will simply take a clause on one side, and-compare it with the corresponding clause on the other side, he will see at a glance what the amendments are. Not one of these amendments alters the sense, except where the Convention has practically directed it to be done.

Mr. SYMON (South Australia).-There is one thing which I hope will not be overlooked, and that is the suggestion which was made by Sir John Forrest yesterday in connexion with the recommittals, and on the strength of which notices of recommittal given by all members except the Drafting Committee were withdrawn, with the view of having the proceedings we have about concluded carried out, and then with the view of having these recommittals take place. The suggestion was that the notices of these recommittals, with the specific amendments intended to be moved, should be

handed in, so that honorable members should have them in their possession, and be able to see whether they would assent to any particular recommittal or not. There might be minor recommittals of clauses, which the majority of the Convention might not ,desire to have brought back again to the committee. We should be quite unable, if they were enumerated as they were yesterday, to determine at the moment whether or not there should be any objection to a recommittal. There might not be, and there might be. What I suggest is: That all those which were notified yesterday might, before we come to have them considered, be put in a list in the order in which the clauses appear in the Bill. That, at any rate, would effect a great saving of time.

Mr. DEAKIN.-There is such a list on the table.

Mr. SYMON.-Has it been circulated?

Mr. BARTON.-I understand that that can be done.

The CHAIRMAN.-If honorable members will hand in the amendments which they wish to propose, they will all be printed on Monday morning in their sequence.

Mr. SYMON.-That will be a great convenience, no doubt.

Sir GEORGE TURNER (Victoria).-Can we deal with an amendment to a clause which has not been recommitted?

The CHAIRMAN.-No.

Mr. BARTON.-You can move to recommit the clause.

Sir GEORGE TURNER.-We were dealing with clause 74 this morning, and a most important alteration, which goes to the root of the whole Constitution, in my mind, has been made by the Drafting Committee by inserting the words "of the Inter-State Commission." That is allowing an appeal to the High Court from the decision of the Inter-State Commission.

Mr. BARTON.-That was because it appeared to be the sense of the committee to have that amendment inserted.

Sir GEORGE TURNER.-I am not blaming the Drafting Committee. When we adjourned for luncheon this clause was Under consideration, and I got back about one second after the bells had ceased to ring, having been detained on a departmental matter, and found that the committee had got to clause 77.

Mr. BARTON.-You can move to recommit the clause again.

[start page 1916] Sir GEORGE TURNER.-But the honorable member may object when I ask the Convention to recommit the clause.

Mr. BARTON (New South Wales).-I mentioned at the time-I think my right honorable friend was not in the chamber-that Sir Joseph Abbott had not lost any right be has to get a clause recommitted. This matter about appeals to the Privy Council I regard as all important one.

Sir GEORGE TURNER.-It is not appeals to the Privy Council.

Mr. BARTON.-In accordance with the intention of honorable gentlemen who wish to modify the question of appeals to the Privy Council, clause 74 would have to be amended to carry out their views. That question is so important that I certainly should not oppose a recommittal of the clause.

Sir JOHN FORREST.-Have we not to give notice of the clauses we intend to ask the Convention to recommit?

The CHAIRMAN.-No. If the notices of recommittals have been handed in they will be printed, and honorable members can move the motions when the proper time arrives. If any honorable member has not already handed in the motion he wishes to move for the recommittal of a clause, he can do it now.

Mr. O’CONNOR (New South Wales).-I would point out to the right honorable member (Sir George Turner) that I was in charge of the Bill at two o'clock, and it was because I understood that there would be a recommittal that I did Dot wait for him to come in.

The Bill was reported with amendments.

Mr. BARTON (New South Wales).-I beg to move-

That the Bill, as reported, be considered on Monday.

I take it that the Bill will be printed between now and Monday, without any formal order.

The PRESIDENT.-Yes.

The motion was agreed to.

Sir JOHN FORREST (Western Australia).-What opportunity shall we have for moving the recommittal of the Bill for certain purposes?

Mr. BARTON.-You can do that on Monday.

Sir JOHN FORREST.-We shall be able to go on with its reconsideration at once, then?

Mr. REID.-Yes.

Sir JOHN FORREST.-It would be very convenient if we could get a list of the proposed amendments beforehand.

Mr. BARTON.-I dare say that if notices of proposed amendments are sent in to-night they can be printed and distributed at honorable members' addresses to-morrow.

The PRESIDENT.-It will be competent for honorable members upon Monday next to move the recommittal of the Bill or of any part of it.

The Convention adjourned at three minutes past four o'clock p.m., until Monday, 7th March.