Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Friday, 20 July 1906


Senator PULSFORD (New South Wales) . - The clause as it stands appears to me to be highly offensive to the States, and I have no hesitation in saying that it would be so regarded by New South Wales. I wish to draw attention to a remark made just now by Senator McGregor, because I think it will explain a little error into which he has fallen. He said that the. wording of the clause would enable some technical defects to be overcome. When it bestows upon the Governor of a State the power of making an arrangement with the Commonwealth contrary to the law of the State, it goes far beyond the mere correction of technical defects, and it is that to which I object. I hope that a very clear amendment will be made, so that what at present is very highly objectionable may be removed. I cannot understand the representative of any State seeking to pass a clause worded as this is. Although I have no doubt that it was drafted with very good intentions, still it is capable of very evil results.

Senator Sir JOSIAHSYMON (South Australia) [12.45]. - 1 thought that the Honorary Minister would, after what has fallen from Senator Best, indicate his acceptance of the amendment suggested. It seems to me to be one that would meet the case. The matter to which attention has been called certainly involves a very grave question of method, to put it upon its lowest ground. I hope that, after the lucid explanation of Senator Best, Senator McGregor will begin to have a glimmering of understanding as to what the clause means. He undertook, at the close of his animated but not very clear speech, to lecture honorable senators1 on this side of the Chamber as to their lack of understanding of the meaning of the clause.


Senator McGregor - I complained of waste of time.


Senator Sir JOSIAH SYMON - The honorable senator wastes the time of the Senate with senseless interjections more than any other member of it. I always find that those who are in the habit of suggesting that others do not understand provisions are themselves wandering in a kind of Cimmerian darkness. I wish to enlighten Senator McGregor a little, because I believe that he is a man who is occasionally susceptible of instruction. I will point out what he has entirely overlooked - that in this Bill there is in the first place a power for the acquisition- of land by mutual agreement, and, in the second place, a power for the acquisition of land by compulsion. This provision is not intended to have any relation to the acquisition of land by compulsion. It has relation to the acquisition of land by agreement. The power of a person to dispose of land by agreement depends upon his ownership and interest in it; and if he is a person occupying an official position, like the Governor of a State, it depends upon the authority given to him by the Parliament of the State, and no one else. In a self -governing country the authority of the Governor is derived from the Parliament of the State. He has certain instructions from the Sovereign, who appoints him to his official position, but his power to deal with Crown lands is now, under the self-governing Constitutions which we possess, dependent upon the approval of Parliament. In relation to negotiations for the acquisition of land which may be entered into by the Commonwealth with a State. all that the Commonwealth can do is to empower its agent - using that term as applicable to the Governor-General - to do what we think he ought to do. If at present power to enter into an agreement to acquire State land, or land held by a State Government, is not vested in the Governor-General, we can confer that power by legislation. But we cannot confer that power upon the Governor of a State. The authority of the Governor of a State to deal with the land of the State depends upon the power the State Parliament gives to him. The Statehas its rights, just as the Commonwealth has its rights, and we have no power toinstruct the Governor-General to give directions to a State Governor. He must receive those instructions from the Parliament of the State to which he owes allegiance, subject to and in accordance with the allegiance that he owes to the Sovereignwho appoints him. The vice of this provision, as Senator Best has pointed out, is that it involves an assumption bv thi* Commonwealth of an authority to confer the power of selling and disposing of State lands upon the Governor of a State. I say emphatically that we do not possess that power, and cannot exercise it. We- have no right to do it. Further, if we could do it, I do not believe that we ought to do it. We have no right to dictate to the States Parliaments and Executives. And even if we had the power we ought not to exercise it in this particularly offensive manner. My honorable friend Senator McGregor has said that he does not see that it is offensive. He says that it is particularly harmonious. The particularly harmonious way in which we are acting is for the Commonwealth Parliament, without so much as a "by your leave" to the people of a State, to say to the Governor of a State that he is to enter into an agreement with the Commonwealth to part with the lands of the State in spite of the provisions of any local Act of Parliament.


Senator McGregor - No; because the State Executive would take very good care not to act except under the authority of an Act of Parliament.


Senator Sir JOSIAH SYMON - I am talking of the legislation which we in a highhanded manner are seeking to pass for the purpose of pretending to give power to the Governor of a State to do something which only the State Legislature can authorize him to do. We can, by virtue of the law, say that, when we acquire land under the Constitution, all dedications and all reservations shall be wiped away, and that we require it in absolute unconditional fee-simple. But we cannot give a power to the Executive of a State to override the Acts of Parliament of a State in the way that we are asked to do. It is a silly thing to attempt. It is a contemptible thing for this Parliament to put upon the statutebook something which, if it is not effective, is useless.


Senator O'Keefe - Would not the Executive of a State be morelikely to consider the wishes of a State than the wishes of the Commonwealth if those wishes were in conflict ?


Senator Keating - Hear, hear !


Senator Sir JOSIAH SYMON - We have been lectured from the stand-point of harmonius relations as to the necessity of coming to a mutual agreement. We are all at one as to that. There is nothing to prevent an agreement being entered into between the Commonwealth and the State. Senator Best's proposal would absolutely provide for it. It is provided for in the existing law, in the section which Senator

Best read, which says that the GovernorGeneral may enter into an agreement with a State. But the power of the State to enter into that voluntary agreement depends upon its own law, which we cannot alter.


Senator O'Keefe - The Executive of a State would not be likely to do anything against the wishes of that State.


Senator Sir JOSIAH SYMON - Why should we assume that we have the power to compel it to do so? I am here representing one of the States, and I say very emphatically that we ought to be extremely solicitous to adopt a form which will carry out our intention without creating offence. We are all agreed as to the desirableness of mutual arrangements. But it will be impossible to carry out those mutual arrangements if we have the impertinence to interfere with a State Parliament, by saying what power the State Governor shall have in selling State lands. If we could do that, it would be a very serious thing. I contend that we cannot. This clause has been inserted inconsiderately. There can be no question about that.


Senator Keating - It has been inserted after a good deal of consideration.


Senator Sir JOSIAH SYMON - The existing section is an admirable one. If it were thought desirable, dedication and reservation could be made to disappear in the manner proposed in the suggested amendment. I scarcely think that that is necessary : but whether it is necessary or not, we do not get over it by giving the Executive of a State under a Commonwealth Act of Parliament power to override its own State legislation.

Progress reported.

Sitting suspended from 1 to 2 p.m.







Suggest corrections