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Tuesday, 9 August 1904


Mr ISAACS (Indi) - I have the misfortune to differ very materially from the honorable and learned member for Parkes. I think we should be very careful to remember our duties as well as our rights under the Constitution, and that it has been committed to the Federal Parliament to determine the site of the Federal Capital, and the extent of the area of the Federal territory.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - Without limit.


Mr ISAACS - Without any further limit than the reasonable discretion of this Parliament.


Mr Johnson - Where does the Com.stitution give us that authority?


Mr ISAACS - I am astonished that any honorable member should overlook, not merely the right, but the duty, of this Parliament to exercise its discretion as to the matters intrusted to it.


Mr Johnson - Yes, as to the Seat of Government, not . the Federal territory.


Mr ISAACS - Does the honorable member mean to say that the Constitution committed to the Government of New South Wales the sole right to determine the area of the Federal territory? Does any honorable member mean to say that we have nothing 'to do but to determine the spot upon which the Federal Capital shall be built, and that, even as to that, we are to go capinhand to the New South Wales Government ; that we are to admit that it is only by their permission that the place we think most desirable can be selected as the site of the Seat of Government, and that' if they do not choose to give us that site we shall perforce have to go wherever else they wish? New South Wales made it an essential part of the bargain that the Federal Capital should be established within that State, and with that condition, and the 'further limitation that the Capital should not be within 100 miles of Sydney, the Constitution provides that it shall be left to the discretion of the Federal Parliament to determine where the Capital shall be, and that the Capital when established shall be within territory of a certain size at least. When the Federal Parliament has determined in its wisdom where the Capital shall be, and what area shall be embraced within the territory surrounding it, then, and then only, will the New South Wales Government be free to exercise its discretion and accede to our request or refuse it.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Then, according to the honorable and learned member's argument, we are at the mercy of New South Wales?


Mr ISAACS - Not solely at the mercy of New South Wales. The arguments used by some honorable members would lead us to suppose that this Parliament ' had nothing to say with regard to the determination of the Seat of Government. I contend, however, that this Parliament has not only the first word, but also the last word, although New South Wales also has necessarily some voice in the matter.


Mr Johnson - How does the honorable member view the provision in the Constitution that the Capital shall be situated within territory " which shall have been granted to or acquired by the Commonwealth."


Mr ISAACS - The Constitution provides that the Seat of Government shall be determined by the Parliament of the Commonwealth. It may be determined at any time. It is further provided that the Seat of Government shall be - that is when it exists - within territory which shall have been granted to or acquired by the Commonwealth. ' That is to say, we can determine now, or at any future time, where the Capital shall be. But when it is established - at the moment of its establishment - it shall be within territory which shall have been already granted to or acquired by. the Commonwealth. The granting to the Commonwealth, or the acquisition by the Commonwealth, is antecedent to the establishment of the Capital, but not to the determination of the Seat of Government.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - This Bill determines the territory in which the Capital shall be established, and the area of such territory.


Mr ISAACS - The honorable and learned member is departing slightly from his original argument.


Mr Johnson - But suppose the Government of New South Wales refused to grant the territory desired by the Commonwealth ?


Mr ISAACS - Then the Capital could not be established unless this Parliament determined to take private land for the purpose. We might, if we chose, select a station embracing a sufficient area of land, and acquire it for the purpose of establishing the Federal Capital. Therefore, we are not wholly dependent upon the New South Wales Government. All that depends upon them is the grant of Crown land free of payment, and the Commonwealth has a power of acquisition, with regard to land other than Crown lands which may be obtained by grant. Honorable members grasp the wrong end of the stick when they say that all we have to do is. merely to say that the Capital shall be at Dalgety, and to go no further ; to give instruction to the Government ; to let them enter upon negotiations with the New South Wales Government, and, if that Government chooses to say, "We will give you only 100 square miles," to rest content. Is that the will of Parliament? I think not.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - If we cannot get any more, what are we to do?


Mr ISAACS - Then we should determine not to establish the Capital there.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - That is a distinctly Victorian view of the question.


Mr Johnson - According to the honorable and learned member the Commonwealth could demand from New South Wales the whole of her territory.


Mr ISAACS - We are not doing anything of that kind. As a member of this Parliament I am not willing to surrender the rights and discretion of this Parliament to the will of any State. If in our wisdom we thought that the future requirements of the Federal Capital rendered advisable a reservation of 500, 600, or 900 square miles, should we establish the Capital in a particular area, even though we could secure only 100 square miles? That is not ray view. Although I have been from the first determined that there should beno unnecessary delay in the establishment of the Federal Capital, I am not willing to surrender the duty imposed upon me as a member of this Parliament to see that the best is done for Australia. We have been told that it is our duty to say nothing about the extent of the territory.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - At present.


Mr ISAACS - Are we ever to do so?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Yes, certainly.


Mr ISAACS - Then let us consider where that would lead us. We have been told that we should first pass a resolution indicating our desire for certain territory, and that the Government should then negotiate, and, if possible, secure such territory. How could the Government be empowered to do that by resolution? How could they go to the New South Wales Government and say, " We want certain territory " ?


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - The resolution would confer the necessary power.


Mr ISAACS - Could the Government, in such a case, guarantee that the Federal Parliament would afterwards determine that the Capital should be established within that territory ? Certainly not. Suppose the New South Wales Government said, "We will grant you 100 square miles," and the Federal Parliament afterwards determined that the Capital should not be situated within the territory granted by New South Wales? What would then happen? Are we to hamper any future Parliament? We might pass a resolution to-day, and the Government might enter into negotiations, and before the acquisition of the land was concluded, another Parliament might come into existence, and say, "We think that the site selected is an improper one. and we shall not establish the Capital there."


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - We should not be in any worse position than if we passed this Bill.


Mr ISAACS - I differ entirely from my honorable and learned friend. If we once pass a Bill enacting that the Capital shall be in a certain spot, and that the Federal territory shall contain a certain area, the moment the territory is acquired the Capital will necessarily be established. In that case, there would be a determination within the meaning ofthe Constitution; whereas a resolution could not be regarded as embodying a determination. Suppose, for instance, we could not obtain quite 100 square miles, or quite 000 square miles - according to the terms of the resolution would the Government be empowered to acquire private land to make good the deficiency? I cannot see that a resolution would convey any such authority. Is it to be said that all the land is to be granted or acquired by the Federal Parliament, and the price paid for it, and that then the Federal Parliament is to sei. about considering whether that territory should embrace the site of the Federal Capital? With all respect to my honorable friends, it appears to me to be absurd to advance any such contention.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - A resumption Actwould have to be passed to empower the Government to take the land, and compensate the owners.


Mr ISAACS - What we have to do at present is perfectly plain. We have to determine where the Capital shall be, and also the area of public land that shall surround it. and when that is done, and only then, the Government will have a mandate to set about negotiating with the Government of New South Wales, with a view to ascertain whether the desired territory can be obtained. If we can secure it all will be plain ; if we cannot obtain all we require in the shape of Crown lands by grant we can acquire the balance.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - How are we to acquire it ?

Mi. ISAACS.- Under an Act of Parliament.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Exactly; under a resumption Act.


Mr ISAACS - A resumption Act would be required under any scheme. We should have to pass a law providing for the resumptions and the payment of a fair price for the land. We should, however, proceed about our work in an orderly manner, and not in the haphazard way suggested by some honorable members. If we do not pass this clause we shall simply enact that the Capital shall be in a certain spot, and, at the same time, say, in effect, "We care not whether or not the territory embraces only 100 square miles." That is not the will of this Parliament. If we once did ~ that, New South Wales could turn round and say "We shall not give you more than 100 square miles. You have already determined the Seat of the Government, and you cannot help yourselves." ti I thought for a moment that the use of the word " shall," in connexion with the decision as to the area to be comprised within the Federal territory, would offer, in the smallest degree, an affront to New South Wales, I should be one of the ' first to agree to substitute some other expression. In my view, however, it would do nothing of the kind. It is not a mandate, but merely a declaration in ordinary parliamentary form' as to the area which shall be embraced within the Federal territory. The clause is a simple declaration that, in the opinion of this Parliament - and this is the only way ?n which Parliament! can express its opinion definitely - the Federal territory must contain an area of so many square miles. Then, if New South Wales sees its way to give us such territory, we can establish the Capital.


Mr Kelly - In other words, we should not honour the bond unless we get something for it.


Mr ISAACS - Does the honorable member contend that the Federal compact requires us to give New South Wales the Capital ; and that New South Wales is to have the sole voice in determining the extent of the Federal territory.


Mr Kelly - It must contain an area of " not less than 100 square miles."


Mr ISAACS - Of course. But my honorable friend wishes to read into the Constitution the . words " not more " than 100 square miles.


Mr Kelly - Not unreasonably more.


Mr ISAACS - When a power is vested in Parliament there is no limitation regarding the exercise of that power, save its own discretion.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Then why limit the power of this Parliament in regard to the smallness of the territory ?


Mr ISAACS - That condition was imposed by the will of the people, who declared that the area of the Seat of Government should embrace at least too square miles, and as much more as Parliament chose to acquire.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Why should this Parliament be fettered at all?


Mr ISAACS - The question which the honorable member should put is, " Why did not the Constitution fix the area?" The fact remains that it did not. It left the matter to be determined by this Parliament. ' I am not urging that 900 square miles is a proper area to acquire. What I am arguing is that it is for this Parliament to decide what is a proper area. That decision is not left to the will or discretion of any State.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - It is not left to this Parliament, either.


Mr ISAACS - It is for this Parliament to say, as a condition precedent to the establishment of the Seat of Government what area the Federal territory shall comprise. I read into section 125 of the Constitution, practically a direction that Parliament shall determine the area of the Federal territory. Seeing that the Constitution provides that that territory shall embrace not less than 100 square miles, it stands to reason that somebody must determine its extent. Surely it is not a matter for the Government to settle, and as it cannot be settled by the High Court, it must have been left to Parliament to determine.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The area of 100 square miles mentioned in the Constitution is in itself a limitation.


Mr ISAACS - It .is a minimum limitation:,


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - Parliament cannot enact that the territory shall contain ari area of ninety-nine square miles.


Mr ISAACS - Exactly. Therefore I say that where the Constitution intends thai a limitation shall be imposed upon Parliament, it expressly declares it, and where it does not intend that a maximum limitation shall apply, it does not declare it. It is idle to talk about what is reasonable. Who is to determine that?


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - The limitation is practically in the nature of a general direction.


Mr ISAACS - The limitation is to be found in our own discretion, and I hope that that will always be reasonably exercised. When we come to determine the area of the Federal territory, which is a totally different matter from that with which we are now dealing, it will no doubt be decided by the best evidence we can bring to bear upon it. I hope that nobody will even consider that by agreeing to the proposal of the Government we shall offer an affront to New South Wales. That is a course of action which I for one would not tolerate for an instant. I do say, however, that this provision is merely a declaration in ordinary enacting form of the will of Parliament. We have declared thai the Seat of Government shall be within seventeen miles of Dalgety. Why should we say to New South Wales, "We shall have that site or we shall take no other?" But we do say it. We declare " We will not have the Capital at all unless you permit it to be located there." Suppose that New

South Wales replies, " Oh, no; we are perfectly willing to provide you with land at Lyndhurst or Lake George, but we are not prepared to give you land at Dal.gety."

M.r. Kelly. - Doses not the Constitution give us the absolute power to choose a site?


Mr ISAACS - Of course it does, and it also gives us absolute power to fix the area of the Federal territory. It does not limit that area; it merely fixes the minimum.


Mr JOSEPH COOK (PARRAMATTA, NEW SOUTH WALES) - And contains a general direction regarding that area.


Mr ISAACS - No ; it is not a general direction. Upon one point I agree with the honorable and learned member for Parkes, who affirms that having fixed the site of the Seat of Government at Dalgety it is essential that we should have free access to it.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - I did not say that. I argued upon the hypothesis that some honorable members might think it necessary that there should be free access to the Seat of Government.


Mr ISAACS - Perhaps I misunderstood my honorable friend.


Mr BRUCE SMITH (PARKES, NEW SOUTH WALES) - Most .certainly.


Mr ISAACS - If the honorable andlearned member did not argue in that way, he ought to have done so. At a later stage I intend to move that the following words be added to the clause, " and shall have access to the sea." I think it is in the highest degree important-


Sir John Forrest - It is roo miles to the sea from Dalgety.


Mr ISAACS - I am informed that the distance is only seventy miles. At any rate, the Federal Capital should be freely accessible from the sea. I believe that the Federation ought to have full and unimpeded means of access to the Seat of Government from the sea. It ought to have the means of constructing its own railways. It ought not to be dependent on the goodwill of any State in regard to intervening land. For instance, we ought not to be entirely at the mercy of New South Wales, however well disposed, that State might be, in regard to the means of access to the Federal Capital. We ought not to be compelled to travel to Cooma in order to reach Dalgety, but access to the Seat of Government through Federal territory and by Federal means of transit should be open to all the States in common.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - The better plan would be to resume the whole of New South Wales.


Mr ISAACS - Is the area of that State so limited that it cannot afford to part with what is equivalent to thirty miles square?


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - That is not the provision which is contained in the Bill.


Mr ISAACS - The measure provides for the acquisition of a territory comprising 900 square miles.


Mr DUGALD THOMSON (NORTH SYDNEY, NEW SOUTH WALES) - No. It provides for the acquisition of an area of not less than 900 square miles. The honorable and learned member wishes the Federal territory to extend to the sea.


Mr ISAACS - Undoubtedly I do.


Mr Kelly - Does the honorable and learned member wish to preserve the unearned increment for the Commonwealth?


Mr ISAACS - That is quite another question. I am dealing now with the means of access to the Seat of Government. I take it that to provide for the expansion of the Federal Capital - irrespective of whether it has a commercial future or only a political one - a very considerable area of territory ought to be acquired. Looking to the future, we ought to see that provision is made for access to the Seat of Government from Twofold Bay through Federal territory.


Mr McWilliams - Then we ought to select Bombala.


Mr Austin Chapman - Why so?


Mr McWilliams - Because it is much closer to the sea than is Dalgety.


Mr ISAACS - I am not discussing that matter at the present time. I think I have said all thatI proposed to say, and I do hope that honorable members will recollect - as the other Chamber has recollected - that they are here to declare their will fearlessly, without offence to any State or any person. At the same time, I am absolutely certain that we are not doing anything offensive to the great State of New South Wales - I hope nobody will ever dream that we are - by affirming in plain, simple language, our determination in regard to the area which the Federal territory shall embrace. Under these circumstances, I trust that the Government will retain the clause in its present form.







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