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Thursday, 15 July 1915

Senator KEATING (TASMANIA) - In Canada the form of government is, as I said last night, a Confederation. I tried to emphasize last night that our form of government is a Federation.

Senator Guy - Never mind.

Senator KEATING - It is a case of " mind." Canada was brought into being as a political entity by the junction of Upper Canada and Lower Canada, and afterwards an outside authority - not the Canadian people, but the British Parliament - passed the British North America

Act, constituting a Confederation. It gave to several defined Provinces certain powers, and everything else went to the Confederation. It was because of that, and because it was not a Federation, that its position is totally different from ours. The Provinces only legislate on certain subjects; otherwise the power of the Dominion Parliament is supreme and unlimited.

Senator Guy - And they control these matters of legislation.

Senator KEATING - It is for that reason that they are to be distinguished from us. Canada is not a Federation.

Senator Guy - What is the difference between a Confederation and a Federation?

Senator KEATING - Look at Canada.

Senator Guy - But what is the difference in regard to the control of these powers ?

Senator KEATING - I thought that I went very far last night in stressing the point that ours i3 a true Federation, or a political partnership entered into by six States, each sovereign, separate, equal, and free. In the Canadian Senate my honorable friend would not find a position unless the Government put him there, because the people have nothing to do with its composition. The Provinces have nothing to do with the Senate. It is chosen by the Dominion Government of the day. This Chamber is the distinguishing feature between our political partnership and a Confederation like Canada. Nova Scotia has not the same representation in the Senate as Ontario has. New Brunswick has not the same representation as Quebec has. Each Province is represented unequally, both in the House of Commons and in the Senate. We, on the other hand, are a true Federation, and it is because we united for certain purposes - we are still six separate, distinct, sovereign, and equal States for other purposes - that each State is equally represented here. That is the difference' between a Confederation and a Federation.

Senator GUY (TASMANIA) - It is very illuminating, no doubt, but there is still the position that the Canadian Parliament can control things which we cannot control.

Senator KEATING - The two Parliaments are differently constituted. I pointed out last night that if we take over these powers we shall, as a matter of logic, have to follow the course which Canada has pursued. We will not have equality of representation. That will go as a consequence. The argument against equality of representation will be intensified. It exists in Canada; it has existed from the first. They repudiated solemnly and absolutely the Federal principle; they would not have equality of representation which they found across the border, in the Senate of the United States. They would not have Lower and Upper Canada having just the same representation as Nova Scotia or a western prairie Province. Theirs is a centralized government, and the more we centralize our government the stronger will be the, agitation aud the argument for the abolition of equality of representation. We shall be told then, " Look at Canada. We have the powers that Canada has. It is the people only, and not the States, that must dominate the Federation." They will contend that the people shall elect the members of the House of Representatives, and that the States, if represented at all, be only represented in proportion to their population.

Senator Guy - We are quite secure.

Senator KEATING - My honorable friend may say so: but we are not secure from such persistent and strengthened agitation.

Senator Guy - The agitation is ineffective.

Senator KEATING - It has been so far, because equality of representation is based upon the .present distribution of power ; but if we alter, the distribution of power between the Commonwealth and the States to the extent to which we are invited to go in these Bills, we shall remove the main ground and justification for that equality of representation.

Senator Russell - The States have supreme power, but they do not abuse that power by interfering with municipal functions.

Senator KEATING - I have not said that this Parliament would abuse its power.

Senator Russell - The honorable senator might as well say that the State Government of Victoria would interfere with the Melbourne City Council.

Senator KEATING - I do not say that it would. What I have said is that this Parliament would be unable to cope with the immense amount of work that would be brought to it.

Senator Russell - All that work will not come here.

Senator KEATING - It is my opinion that it will, though it may not come here to the extent which some honorable senators seem to anticipate and to welcome.

Senator Russell - The honorable senator might as well ask a State Government to run a municipal farm.

Senator KEATING - In my opinion, which is founded upon observation during the past twelve years, there will be an increasing disposition to come to the Federal Parliament, and outside bodies in different parts of the States will be encouraged to appeal to the Federal rather than to the different State Parliaments.

Senator Watson - Quite properly, too.

Senator KEATING - I say that the more work of a legislative character which the Federal Parliament is invited to undertake the greater will be its congestion.

Senator Watson - It is proper that all industrial matters should come under the Federal authority.

Senator Lt Colonel Sir Albert Gould - Senator Russell does not agree with the honorable senator.

Senator Russell - I say that the tendency in Australia is to decentralize where that can be done.

Senator Lynch - The presumption is that the Federal Parliament will abuse its powers, and that the State Parliaments will never abuse theirs.

Senator KEATING - I do not know whether Senator Lynch has been present while I have been dealing with this matter; but I repeat that I never did, and never will, take the view that this Parliament is to be distrusted, or is likely to abuse its powers. I know that it is too closely in touch with the electors to do anything of the kind. My argument is that, by assuming such extensive powers, it will be humanly and physically impossible for the members of this Parliament to exercise them adequately and effectively.

Senator Bakhap - The honorable senator is aware ' that some Parliaments quite properly distrust themselves, and do not care to exercise judicial functions.

Senator Watson - We have only the same population here as there is in London.

Senator KEATING - Population is not everything. We have here an" enormous territory, and varied interests, so that the position in Australia is very different from that of London. The responsibilities of a Parliament are not to be measured merely by the number of people who have to be legislated for. It is a mistake which many people unwittingly make, that the number of the population is the only thing that has to be considered.

Senator Russell - That is what the members of the Upper House of the Victorian Parliament say.

Senator KEATING - Everything is not to be measured solely by the population. There are big interests, and varied interests of numbers of individuals throughout Australia to be considered. We have also to realize that in Australia there are very big enterprises, such as the railways and telegraphs, under the control of Governments that in other countries are controlled by private concerns. All these matters demand adequate consideration by the parliamentary bodies interested in them.

Senator Millen - It should be remembered, also, that the individual elector in Australia is much closer to his Government than is the individual elector elsewhere.

Senator KEATING - That is so; the individual elector is more closely in touch with his parliamentary representative in Australia than he is in any other country in the world.

Senator Russell - Not in some of the States.

Senator KEATING - Will the honorable senator say in what other country in the world the individual elector is in closer touch with his parliamentary representative ?

Senator Russell - Does the honorable senator know that 80 per cent, of the young men who have gone from Victoria to the front have no vote for members of the Legislative Council in this State?

Senator KEATING - Will the honorable senator say in what country the individual elector is more closely in touch with his parliamentary representative than he is in Australia?

Senator Russell - The honorable senator cannot answer my statement.

Senator KEATING - I am not talking about that at all. I say that the individual elector in Australia is more closely in touch with his parliamentary representative than is the individual elector in any other country.

Senator Russell - Is the honorable senator aware that there were two members of the Senate who had not a vote for the Legislative Council in this State ?

Senator KEATING - Will the honorable senator tell me in what other country he would be more closely in touch with parliamentary representatives ?

Senator Russell - We are far enough away from them here when a member of the Senate has not a vote for the Legislative Council in his own State.

Senator KEATING - The honorable senator will not be able to take me off the track. I say that there is no country in the world where the individual is more closely in touch with his political representative than he is in Australia. He is not more closely in touch with his political representatives in Canada or in the United States.

Senator Russell - Does the honorable senator not think that he ought to be more closely in touch with them in Australia than he is?

Senator KEATING - That is not the point. We are dealing with Federal, and not with State, matters, and I made my assertion in reply to an interjection by Senator Watson, who seemed to think that the strength of Parliament should be regulated by the population.

I have given very serious and earnest consideration to the Constitution, whilst it was being framed and since that time. Only last week-end, when in my office at Launceston, I was going through the more recent reports of the High Court; and noting the effect of their decisions -upon different Commonwealth legislation and upon the Constitution, I could not but be struck with the number of judicial decisions that there have been in connexion with the exercise of its powers by this Parliament. It must always be that the High Court will be the interpreter of our Constitution. When these amendments are adopted - if they be adopted - the High Court will be the interpreter of them. It will not be for this Parliament, but for the High Court, to say what they mean. That is the reason why the greatest care and attention should be given to any proposed^ amendment of the Constitution. It has been repeatedly said during the course of this debate that those who framed the Constitution found, when they came to work under it, that this Parliament has not the powers which they believed it had. It has been our experience to find certain legislation of this Parliament set aside by the High Court as not being within the competence of this body. All these decisions should warn us that every proposal of the present kind should receive the greatest care and the closest possible attention. All the talent, industry, and ability of the community should be devoted to proposals for amendment of the Constitution just as they were to its original formulation. The people themselves should be interested in any proposed amendment from the beginning to the end. I spoke last night of the position in relation to the introduction of legislation such as this to bring about ah amendment of the Constitution. What I said applies to such proposals, no matter what Government may happen to be in power when they are made. It has to be remembered that all proposals for the amendment of the Constitution must go to the people from this Parliament; even though we established a Convention for the consideration of those matters, this Parliament would still have the final decision as to sending them to the people. They would not be sent unless they were agreed to by both Houses of this Parliament. What I hope, and believe will eventually be decided, is that before the Federal Parliament reaches the stage that we have now reached in connexion with these proposals, the most exhaustive care and attention will be given to every proposed amendment of the Constitution. The work is so important, and its consequences may be so far-reaching, that it should, as far as possible, be accurate. If we do not adopt the plan of a Convention to deal with such matters, we should at least have a special session of the Federal Parliament whenever any amendment of the Constitution was proposed - a session in which the members of the Parliament would apply themselves solely to that very important work. I should not personally discountenance the. idea of bringing to the assistance of this Parliament the advice and counsel of outside authorities. We have before in the history of this Parliament secured the assistance of the Judiciary in connexion with legislation which we have passed. On such an important matter as the amendment of the Constitution we should not disdain such assistance. I think, in fact, that we would do well to invite it, not to frame, mark you, recommendations as to amendments, but to assist this Parliament to put into form its wishes with regard to amendments. I do 'not suggest that the Judiciary should be invited to originate the substance of amendments, but to help us to effectively express what we have already decided in substance as necessary amendments of the Constitution. Senator Findley last night quoted a list of cases decided by the High Court. Immediately . the High Court gives a decision affecting our legislation the first step taken is to remedy the defect by amending legislation. In some instances the amending legislation has failed to achieve the object aimed at. When in regard to matters of less importance we have already had the assistance of the Judiciary in framing legislation I do not see why in regard to such an important matter as the amendment of the Constitution we should not, and could not, secure such a system. We ought not to ask the Judiciary to recommend amendments, but, having decided the substance of amendments which we consider necessary, we might well get the assistance .of the Judiciary with regard to the form in which they shall be expressed. The High Court will continue to have the decision of all questions arising out of the Constitution. No matter what amendments we may pass, it will still be the duty of the High Court to interpret their meaning, and. its views as to our amendments will ultimately decide their scope and effect, and the limit of the powers acquired by this Parliament.

Senator O'Keefe - Surely it will help the Court to decide what are our powers if they are put in plainer and clearer language than that in which they are now expressed.

Senator KEATING - I was just about to say that by putting these words in we may find that the High Court will say that our powers are less- clearly defined than they are at present.

Senator O'Keefe - Anything is possible. "

Senator KEATING - I am inclined to think that the High Court may so decide. We have to remember that it is not this Parliament, but the High Court, that is the ultimate authority as to its powers. . That is why I think that in regard to this' , most important matter the assistance of the High Court might have been invoked in a proper way.

At times I have heard certain honorable senators, though certainly not very many, in referring' to the High Court, speak; in a tone of resentment of its authority in the interpretation of the Constitution. I have heard it urged that this Parliament itself should properly determine the limits of its jurisdiction. I remind honorable senators who entertain that opinion that throughout the history of our institutions the judicial and legal body has always played a very important, if not the most important, part. I do not say that because I belong to the legal body. The other day I came across a reference in a book well known in Victoria, and, indeed, throughout the British Empire, a book called The Government of England, by Professor W. E. Hearn, sometime Professor of Law at the University of Melbourne for some years. His name is well known outside Australia, and his authority, too, in these matters is recognised. "Dealing with this subject in his preface, he refers to the position occupied by the Judiciary in connexion with all constitutional struggles. It will be remembered by honorable senators that many landmarks in the history of English liberty have been disputes purely of law, and not of rhetoric, and I think the position which the High Court occupies under this Constitution, and will continue to occupy here, cannot be better expressed than in Professor Hearn's introduction -

As Lord Macaulay has observed, in the great debates of our history there is not a word about Timolcon or Aristogeiton, about Brutus the Elder or Brutus the Younger. When the Lords and the Commons held their famous Conference respecting the vacancy of James the Second's throne, and the fate of England was trembling in the balance, Somers and Nottingham disputed as if they were arguing a demurrer. Eighty years earlier Bacon and Hakewell, in the House of Commons, argued in the same spirit the great grievance of the impositions. Nearly four centuries before, in the hour of their distrust and disquiet, every doubt was quelled", and every wavering resolution was confirmed, when the patriot Primate produced to John's exulting barons the forgotten charter of their rights under the seal of Henry Beauclerc. That charter had itself been won, not by any abstract argument, but by incessant appeals to the " good laws of the Confessor." -

So you can read through history and find that the most dramatic episodes and the most potent assertions of British liberty have resolved around the determination of a dry-as-dust point of law such as whether or not the King can of himself impose taxes upon his subjects. We all know the history of the patriot, John Hampden, who refused to pay the f 1 ship money imposed upon him. It was not oy any argument, or rhetoric, or appeals to passion, but by the calm, cold, calculating deliberation and appeals to law, and the legal principles affecting the Constitution, that matters of that kind were determined.

Senator Gardiner - Do you say that it was calm, cold, calculating deliberations that determined that particular case ?

Senator KEATING - Yes.

Senator Gardiner - It may have been calm, cold calculations that put him in gaol. .

Senator KEATING - The determining of the constitutional point of law was discussed in a calm, cold, deliberate manner.

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