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1891 Australasian Federation Conference

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MONDAY, 6 APRIL, 1891.

Address-Commonwealth of Australia Bill-Adjournment.

The PRESIDENT took the chair at 11 a.m.


The PRESIDENT: I have received a letter from Tuckurimba, which I request the secretary to read.

The secretary read the following letter:-

Tuckurimba, 27 March, 1891.

The Hon. Sir Henry Parkes,

President of the Federal Conference.

Sir,-As secretary of the Tuckurimba Progress Committee, I feel very much gratified to have to forward to you the following resolution, which was unanimously adopted at our meeting, very largely and representatively attended, on the 24th instant:-

That this committee desire to convey to the Federal Conference through its president, the hope that its deliberations may result in the forming of a united Australian nation; and that this resolution be sent by our secretary to the President of the Federal Conference now sitting at Sydney.

I have, &c.,



In Committee (consideration resumed from 3rd April):


Part V.-Powers of the Parliament.

Clause 55. (1.) The senate shall have equal power with the house of representatives in respect of all proposed laws, except laws imposing taxation and laws appropriating the necessary supplies for the ordinary annual services of the government, which the senate may affirm or reject, but may not amend. But the senate may not amend any proposed law in such a manner as to increase any proposed charge or burden on the people.

(2.) Laws imposing taxation shall deal with the imposition of taxation only.

(3.) Laws imposing taxation, except laws imposing duties of customs on imports shall deal with one subject of taxation only.

(4.) The expenditure for services other than the ordinary annual services of the government shall not be authorised by the same law as that which appropriates the supplies for such ordinary annual services, but shall be authorised by a separate law or laws.

(5.) In the case of a proposed law which the senate may not amend, the senate may at any stage return it to the house of representatives with a message requesting the omission or amendment of any items or provisions therein. And the house of representatives may, if it thinks fit, make such omissions or amendments, or any of them, with or without modifications.

Upon which Mr. Baker had moved, by way of amendment:

That all the words in sub-section 1, after the first word "laws," line 3, be omitted.

Mr. THYNNE: I think this question deserves a little more consideration, than is proposed to be given to it by some hon. gentlemen who wish to see it disposed of immediately. We have now come to one of the clauses of the bill to which a great deal of importance is attached by, I think, every member of the Convention. It is a clause the effect of which may have such an influence in directing the operations of the commonwealth and its parliament in the future that I think it would be unwise for us to pass over this important matter without [start page 723] giving it the very fullest consideration we are capable of giving it. In dealing with this question I propose to occupy the time of the Convention for a few minutes, and to enter into a very careful consideration of some of the matters which have arisen in this debate. The line of thought which has urged me to get up and speak has been suggested by an observation which was made on our last meeting day by the hon. delegate, Mr. Deakin. He then, no doubt, introduced into the debates a new style of argument compared with what had been adopted in this Convention, in the manner in which be criticised the action of certain members of the Convention in taking their seats in a particular division that took place. The words which he used struck me very much at the time; first of all, because of the very forcible condemnation with which the hon. gentleman uttered them, and, in the next place, they struck me with surprise that of all the members of this Convention the hon. member, Mr. Deakin, should be found the one man in it who would venture to attack any members of the Convention for the position they took on that occasion. The words the hon. gentleman used were something to this effect, so far as I can recollect them. He said, "The extraordinary combination in the last division, reactionary radicals and iconoclastic conservatives sitting together on the same bench, was enough to startle any member in any house in a constitutionally governed country."

Colonel SMITH: That is quite right!

Mr. THYNNE: That the hon. member, Mr. Deakin, should have been the person in this Convention to make that attack upon any member of it, is a matter that struck me with great surprise, because, in the history of these colonies if there has ever been a union of "reactionary radicalism and iconoclastic conservatism," that hon. member and his colleagues in Victoria have proved it in history.

Mr. MUNRO: What has that to do with the business before us now?

Mr. THYNNE: It has a good deal to do with the business, and the hon. gentleman will, I think, see before I conclude that it has; at any rate, in some minds it has a very important bearing on the business before the Convention. In political matters one may see these violent conjunctions of opposing parties and these strange combinations. They are justifiable in the face of extraordinary crises. They are only justified when something arises which overshadows all the leading points of the party organisations of the country. Then, and only then, it is that statesmen are at liberty with credit to themselves to postpone the advocacy and the enforcement of their political principles when it amounts merely to a temporary withdrawal of them to allow the danger of the crisis to pass by. But we have seen these gentlemen who are so ready to attack the motives or the position of other delegates-we have seen for seven long years what I may call an extraordinary connection of radicalism and

conservatism living and thriving under the powerful influence of my hon. friend, Mr. Deakin; thriving to an extent which I think is absolutely without precedent in any part of the British dominions. I do not refer to these matters for the sake of making a retort or an attack upon those hon. gentlemen; but the train of thought which was suggested by that hon. gentleman's remarks has led me to question what ought to be the influence which these delegates should have upon the members of the Convention in dealing with the important question of the relative position of the several states to the federal parliament. Now, any set of men advocating seriously and entertaining strong opinions upon political matters, and who for some unknown reason will abandon their views for such a long term as seven or eight years cannot but undergo some deterioration. They [start page 724] must suffer some deterioration in their political prestige and principles by what cannot I think under any circumstances be justified; and the people who have not been, as the hon. gentleman says, startled by the extraordinary sight of these two opposing elements sitting, not merely on the same bench in a casual division, but sitting in the same ministry, conducting the affairs of the colony for seven or eight years-a period, I think, almost without precedent in these colonies-the people whose sense of political propriety and of the correct conduct of political affairs has not been startled by that extraordinary combination, and have submitted to it, must also have suffered some of the deterioration which their leaders under went. I think these extraordinary combinations of reactionary radicalism and iconoclastic conservatism-I like the sound of those words-really have an effect which is not good either for the members of the combinations or for the men who follow them in their political career. Another sentiment which has been expressed by hon. gentlemen has struck me with a great deal of surprise. The hon. gentleman professes to be a great leader of democracy, and yet he is incapable or professes himself to be incapable of accepting the position which the hon. member, Dr. Cockburn, so clearly laid down: that it is necessary to protect the real rights of the people, as far as possible, by having a strong local government. The hon. gentleman goes in for advocating complete centralisation. I must say that I am very much astonished to find that the democracy of Victoria, of which I take the hon. gentleman to be the leading representative, is of that description. And when I look back upon the history of popular thought in Victoria; when I look back upon the great victories which, in times gone by, democracy has won, I am afraid to say under other leaders; cannot but think that they have for a moment forgotten the object for which they combined originally, and have now descended from being a democracy for the establishment of liberty to a democracy seeking some less worthy object. I would again for a moment, sir, ask to be permitted to refer to the working of this combination. I was very much interested some time ago in reading of a traveller in Russia being pursued by the fierce wolves that infest the steppes, and who in terror of his own destruction from their teeth sought to gain a short respite by throwing overboard one of his own children. I do not say that my hon. friend, Mr. Deakin, or any of his colleagues, have adopted the extreme course which the unfortunate traveller felt himself, in his terror, obliged to do. But I think that these combinations, these unholy associations for a moment, have sustained their existence by casting behind them with a very profuse and liberal hand-not exactly the children who were coming after them, but certainly the means of sustenance, the life-blood of their existence, by those extraordinary expenditures of which the Victorian people are now so strongly complaining.

Mr. MUNRO: Question!

Mr. GILLIES: What has the hon. member to do with that?

Mr. THYNNE: I do not say that Victoria is the only colony in the group which has pursued this course, but I think I am justified in alluding specially to that colony, because of the extraordinary position which its delegates take up in the Convention. The representatives of no other colony take up the position here which they do. The members of the Assembly from Victoria present one solid phalanx in this Convention. With two notable exceptions, which I will mention presently, I think there is practically no member of the Convention who advocates the extreme view which they do. I cannot but express, if the hon, member will allow me, [start page 725] my great sympathy with the Premier of Victoria in having to succeed in the management of its affairs.

The CHAIRMAN: Order. I have allowed the hon. member to go on now for some time; but I must call his attention to the question before the Convention, which is a proposal to omit all the words in the 1st sub-clause after the word "laws." It appears to me that the hon. gentleman is not discussing that question, but the policy of certain Victorian politicians, which, I think he must see, is irrelevant.

Mr. THYNNE: I bow to your ruling, sir. My object was not to discuss Victorian politics, which I do not profess myself to be capable of doing with much effect; but I thought that on this clause I should be justified in arguing with my colleagues in this Convention against what seems to me to be the stand taken almost alone by the representatives of Victoria. I have endeavoured, in the remarks I have been making, to explain, as far as it is possible to do so, the reason why the representatives of Victoria have taken in this Convention an almost isolated course. This is the crucial clause of the bill. Upon the provisions we make with respect to the legislation of the federation depends its very existence.

Dr. COCKBURN: The question is whether we are to have federation or unification!

Mr. THYNNE: Quite so-whether we are to have federation or unification. The whole case depends upon the course the Convention take with reference to this clause, and for that reason I am venturing to speak somewhat fully, and I will now add a few remarks which may, perhaps, be held to bear a little more directly upon the point at issue. I think I am within the rules of debate in referring to the attitude a certain section of the Victorian delegates have taken in this Convention. Was there any feature in our proceedings which struck members of this Convention at the commencement of our sittings so forcibly as the peculiarly selfish position we all thought the representatives of Victoria took up in what was called their claim for a guarantee? That claim was argued very strongly by the hon. member, Mr. Deakin, and that hon. member was supported by the hon. member, Mr. Munro.

Mr. MUNRO: No!

Mr. THYNNE: I understood so.

Mr. MUNRO: But I say no!

Colonel SMITH: That is passed and settled!

Mr. THYNNE: I think the delegates of Victoria, coming somewhat hastily to this Convention, mistook the real interests of the people of Victoria in taking up the position that they did, and having been once mistaken-

Mr. MUNRO: Surely there is nothing of this in the clause!

Mr. THYNNE: I am sorry the hon. members from Victoria seem to feel so keenly the remarks I am making.

Mr. MUNRO: We feel that the hon. member is not talking upon the subject before the Committee; that is all!

Mr. THYNNE: I am sorry these gentlemen are so sensitive to a little criticism. I have surely not been unduly severe.

Colonel SMITH: Oh dear, no. We are quite enjoying it!

Mr. THYNNE: I would point out this: that if the Premier of Victoria felt it necessary to repudiate one portion of their claim he might find it equally necessary, before the Convention is over, to withdraw from the position which he and his colleagues ought not to have taken up on the question of state rights.

Mr. MUNRO: We each express our own judgment!

Mr. THYNNE: I am afraid my hon. friend, Colonel Smith, feels a little sore at my remarks.

Colonel SMITH: Not at all. I am quite enjoying them!

[start page 726] Mr. THYNNE: I have, however, to make to the hon. gentleman something in the nature of an apology. I regret that the hon. and gallant gentleman, for whom I have a great deal of respect, and whom we are all very glad to see in this Convention, was so ready to talk of packing up his portmanteau and running away from us. I at first thought the hon. gentleman was not taking up a position which a gallant gentleman ought to occupy; but I have changed my views with regard to the hon. gentleman's object.

Colonel SMITH: I have also changed my mind!

Mr. THYNNE: I think the hon. gentleman has been playing the part of an able tactician, and that he has been making merely a feint to retire, that his feint has been nearly successful, and that even gentleman from Victoria, and many other members of the Convention, are on the brink of being led into a trap which the hon. gentleman, in his able generalship, has laid for them. In other respects, if the hon. member has not converted very many members in the Convention to his own way of thinking, he has certainly advocated the claims of Ballarat very extensively.

Colonel SMITH: A very fine place is Ballarat!

Mr. THYNNE: I have nothing more to say with reference to the hon. member. With regard to my hon. friend, Mr. Wrixon, another delegate from Victoria, we find that it has hitherto been almost the invariable rule in Australian politics that distinguished statesmen who have left the colonies for a short time, on business howsoever important, have found it necessary to undergo on their return some period of political quarantine before returning to political power. I do not hesitate to express my own feeling that the gentlemen comprised in this particular section of the Victorian delegation do not express here the better thought of the Victorian people. If they do express that better thought, if the Victorian people have really taken up in their hearts the position these gentlemen represent, the question arises in my mind as to whether, under those circumstances, they have yet risen to the federal atmosphere-to an atmosphere entitling them to come into this Convention. I should not feel very much aggrieved if they had not come in, because I feel that it will not be very long before they will be made to ask for admission to the federation, which I hope will be brought about sooner or later as the result of our discussions. Apart from the hon. gentlemen of whom I have already spoken, there are two prominent and able members of the Convention who, to a certain extent, support the views to which I have referred. One of these is our very highly respected and venerated President, Sir Henry Parkes. I have listened carefully to every word that has fallen from him; I have sought in his words for some guidance and assistance in coming to a conclusion on some of the most important, questions with which we have had to deal; but I must say I have not beard fall from him any clear description of the form of government we shall have to adopt here, because at one time while the hon. member has spoken of a federal government in terms to which I cannot but give my hearty adherence, he has, at other times, spoken of following the example of the British Constitution as far as it is possible to do so. Up to a recent period I have been left in some doubt as to what would really be the hon. gentleman's definition of what our federal parliament should be. I have not heard in his many able speeches that clear definition, that clear division of the points at issue for which I had hoped, and which I still hope to receive at his hands. I speak, of course, with the very greatest respect for the hon. gentleman; and I will now pass on to [start page 727] another exception to the general rule in this Convention. I refer to the hon. member, Mr. Playford. He has, I think, put forward in this Convention the most important objection to giving the senate and house of representatives co-equal powers. His objection is that if we give the two houses co-equal powers, we cannot have responsible government.

I am not very much afraid of that, although it seems to me-and I have at the same time great respect for the opinions of a gentleman who has had such a large experience in the working of responsible government-that responsible government is one of those things that will adapt itself to almost any circumstances which may arise. It has evolved itself from a system of government in which there has been practically coequal powers between two houses at one time or other, and I think it may be trusted still to establish itself among English-speaking people in these colonies. It is a thing which it is extremely hard to define. You cannot lay down lines upon which it may or may not act; but I think, even under co-equal houses, with a little forbearance and common-sense which we will expect to find in those two houses, a system of responsible government will not only exist, but it will exist in a better condition than it does at present. I would ask the hon. member, Mr. Playford, with his great practical experience and practical mind, whether he prefers to preserve responsible government for the federation at the risk of its destruction in the states, or whether he prefers to have responsible government preserved in the states at the risk of some slight modification of it in the federal parliament? In the scheme, as it stands at present, it is proposed that a very large and most important section of the revenue of each colony shall be handed over to the federal government. In looking over some figures last night I found that from Victoria something over £3,500,000 of their revenue will be taken away by the federation, and I dare say it will be the same in proportion in the other colonies. I would ask the hon. member, Mr. Playford, how he will explain the future working of responsible government, which, if it does anything, places upon the administration as its greatest duty the financial management of affairs in each colony. How can responsible government be maintained in these colonies when they have no means of ascertaining how much of their revenue is to come back to them, and when they have no means of influencing effectually the expenditure of the money taken into the federation? Next year, or the year after federation has been accomplished, how can the treasurer of any colony prepare with any confidence a financial statement? How can he tell how much money be is likely to get, or what his revenue is to be? It will be very difficult for the treasurers to do so for many years until, with our usual adaptability to circumstances, we get accustomed to the new current of affairs.

Dr. COCKBURN: They need not count on getting much back!

Mr. THYNNE: My small contribution to the discussion on this point is this: That unless the parliaments of the colonies have by their representatives in the senate an effective voice in preventing extravagance in the federal parliament, those parliaments will never be able to count upon their revenue, or as to what their means of sustenance will be. The federal parliament will be like the hunter sitting at his table with his hounds around him, waiting to have cast to them the bones which are left after he has had his meal. The states will indeed be in a subordinate, a degraded position; and they will never be able to maintain their influence or the power which I at least am desirous they should maintain.

Dr. COCKBURN: They will exist on charity!

[start page 728] Mr. THYNNE: On charity, or what may be worse, on favouritism, or, at any rate, on principles which will not be likely to conduce to the self-respect of the parliaments of the different states or of the people whose affairs they administer. With regard to the clause itself, I think that these words, "The ordinary annual services of the government," form one of those elastic terms which mean nothing at all, which will form no restriction. It is certainly a very poor sentence upon which to distinguish the lines according to which one house of parliament may act under certain circumstances and may not act under other circumstances. There are two distinct parties in this Convention upon this question. One party says, "With the clause as it stands now we are practically getting all that we ask." The other party says, "We are making concessions, and we are, at any rate, preserving the power of one house some what at the expense of the other." If this clause is intended by one party to unduly curb the power of the senate, I think that the clause in its present form ought not to appear in a constitution act framed in Australia. If on the other hand, it is intended to operate, as I am afraid it will, inimically to the interests of the states composing the federation, it is not one that ought to

appear in our constitution. In any case, it is really only a form of regulation of parliamentary procedure between the two houses and one which I think we ought to leave entirely to the capacity and good sense of the two houses which we hope to see elected under this constitution. I am afraid I have trespassed on the feelings of some hon. gentlemen, but I have been obliged to do so in order to explain as well as I could the reason why I give my support to the amendment moved by the hon, member, Mr. Baker.

Mr. BIRD: I hope the members of the Convention generally have spent Sunday more profitably than, I think, the hon. member, Mr. Thynne, has done. I think that, instead of going to church, like a good Christian, and listening to a sermon from a minister, he has spent yesterday in preparing a sermon for Victoria in general and the representatives of Victoria and some other hon. members in particular. However pleasant that sermon may have been to deliver, I do not think it will produce more effect on those who listened to it than was produced by many of the sermons delivered yesterday on those who went to hear them. I performed the good Christian's part, and went to church twice; therefore, I have had no time to prepare such a sermon as that just delivered, which travelled over a field wider than that which the question before the Convention would permit. But I feel bound, in view of the vote I intend to give on this question, to say a few words in justification of that vote. In speaking on this question on a former occasion in this Convention, I expressed strongly my belief that the senate ought to have co-ordinate powers with the house of representatives. More particularly I then said it ought to have co-ordinate powers if it were elected, as it ought to be elected, directly by the people. Now, we have altered somewhat the constituency of the senate, or, rather, we have not adopted that constituency which I believe would have been the best. But, under the circumstances, with a senate constituted as it is to be constituted under the clause we have already agreed to, I still feel that there could be no harm whatever, but only the conferring of a right-and a proper right-upon the senate, if we gave to it those powers which we are asked to give to it by the amendment of the hon. member, Mr. Baker. I cannot understand why there is such a great fear expressed on the part of several members of the Convention as to giving the senate such powers as those. I think it must arise very largely on the part of those hon. members from their having had no such experience as some of us [start page 729] have had in other colonies as to the working of similar powers when possessed by the upper houses. As is well known, in Tasmania the upper house has a considerable power in dealing with money bills; but, beyond the annoyance naturally felt by the lower house when their measures are seriously amended by the upper house no great evil, if any, has resulted in the long run. And so in South Australia; I understand that a practice which runs very much on the lines proposed in this bill has been in operation there, and has worked fairly well. Therefore, with such experience as we have had in South Australia and Tasmania of partial or complete power in regard to money bills being possessed by the upper house, it seems to me exceedingly strange that there should be so much hesitation and unwillingness to give to the senate more power in regard to money bills than is possessed by several upper houses in the colonial legislatures. Considering that we shall have in the senate as good men certainly as we shall have in the house of representatives, men as well able to judge upon the various matters brought before them as any in the house of representatives, does it not strike hon. members as strange that they should not have the right even to express their opinion upon matters of expenditure or taxation in the way in which some hon. members would wish to prevent them from doing? If we acknowledge that those who are to be members of the senate are men of good standing, men of good judgment, men chosen by the elect of the people, together with some who are nominated by the governments of the various colonies who are supposed to nominate those who are in many respects representative men-if we are going to have men of this class, why hesitate to give them the power claimed for them by some to deal with bills of all kinds? But whilst I hold strongly that the amendment ought to be carried, and that the senate ought to have this power, yet knowing, as I do, that Victoria and New South Wales are hardly likely to join the federation if any greater concession is made than is already in the bill in regard to the powers of the senate, and desiring, as I do, most strongly that we should not insist upon provisions which may possibly-or, I should say, probably-have the effect of excluding such colonies as Victoria and New South Wales from the federation, I feel that, however strong one's views are in regard to the powers which the senate ought to possess, we ought to have consideration for the interests of the federation as a whole, and not to push our principles so far as to exclude colonies like those.

Mr. DONALDSON: Rather sacrifice all the other colonies!

Mr. BIRD: No. I do not consider that by the proposal now before us all the other colonies are being sacrificed, but that there is a large concession made to them. The concession made in the bill is perhaps a larger concession than some hon. members appear to think it. I do not know really whether, if they had the power to amend money bills and send their amendments to the lower house embodied in a bill, the senate would have any more power than they will have under the concession now placed before us. There is just this difference: Instead of embodying their amendments in the bill and sending it down to the representative chamber, their amendments will be embodied in a message and sent down for the consideration of the house of representatives, the message accompanying the bill. Therefore, in the house of representatives there would be the same consideration given to the proposed amendments of the senate as if they were in the bill and sent back in the ordinary way.

Mr. ADYE DOUGLAS: If clause 5 is struck out, what then?

Mr. CUTHBERT: There is no danger of that!

[start page 730] Mr. BIRD: I am going to argue for the clause standing in the bill as it is, believing the concession made there to those who want to have coordinate powers given to the senate is one that gives more than some members appear to think. I feel that whatever the views of the senate are, they can be expressed in the shape provided for here, and will receive due consideration from the house of representatives when brought before it-as due and full consideration as if they were stated in the bill in the ordinary way. I am so anxious that without great sacrifice of principle we should secure the federation of the colonies-and by no means should we pass a provision that would exclude Victoria and New South Wales-that l am quite prepared to agree to the concession proposed in the bill and not to press for a further amendment giving a larger concession, as is proposed by the hon. member for South Australia. I felt it right to say this in justification of the vote I shall give, as, having spoken as I did on a former occasion, I might have been for the sake of consistency compelled to vote for the amendment. But considering the expressions of opinion that we have had, and particularly the statement from the premiers of New South Wales and Victoria that neither of those colonies can join the federation if the senate is to have powers equal to those of the house of representatives, I am disposed to vote against Mr. Baker's amendment, and thus agree to a compromise for the sake of the federation of the whole of the colonies.

Mr. ADYE DOUGLAS: The speech which the hon. member has just made is one I might have expected from him, that is to say, that be would argue one day in one way and vote in the opposite direction the next day. Either the senate ought to maintain its position or it ought to give it up at once without any condition whatever. Is the senate to have any powers at all, or is it to retain such powers as it was intended to give it? When we started it was proposed to give the states equal representation in the senate, because they had virtually no power in the house of representatives. Therefore, you say you will make it up by giving them power in the senate. The 5th portion of the clause gives a most extraordinary method of providing ways and means to do nothing, because any legislature at present has power within itself to do what that clause expresses, and hon. members must have been aware of it. When this clause was agreed to in committee, it was understood that it was merely put in the bill in order that it might be debated in the Convention. The amendment of Mr. Baker for striking out these exceptional matters puts the senate in its proper position-it gives it power to exercise a right which they possess in taxing their several provinces in the way in which they think they are justified in taxing them. How are we to get on in the smaller colonies simply because Victoria and New South Wales said something on the subject? On the last occasion we heard that those colonies were divided. It is not because the President and the Premier of Victoria have said that the colonies which they represent will not agree to this provision that we are to, assume that those colonies will not accept it. And why should not the smaller colonies say, "We will not agree to the bill"? If they do so we shall have a very fine arrangement between Victoria and New South Wales, which, we know, cannot agree

upon any subject whatever, and are therefore sure to come to grief in this matter. It is a well known fact, and we had experience of it on Friday last, that these colonies cannot agree. Immediately any question arose between them it had to be set aside. They could not agree on river navigation, upon railway management, or upon any other subject.

Mr. MUNRO: They agreed upon everything!

[start page 731] Mr. ADYE DOUGLAS: They agreed upon everything! Yes, they agreed to carry a bill which will not be satisfactory to the other colonies. The majority of the representatives of the smaller colonies have stated that the proposed arrangement is not suitable to them; but they are to be left out of consideration because some of the representatives of the two big colonies have said that they will not agree to the amendment. I say that a bill must be passed which will be accepted in all the colonies, not one by which one or two of the colonies will be able to domineer over the rest. The big colonies will have sufficient power without being permitted to domineer in that way. You might as well say that Victoria and New South Wales are to settle the laws of the whole of Australia as pass this clause as it is. That is the meaning of it.

Colonel SMITH: No!

Mr. ADYE DOUGLAS: Then what is the meaning of it, if Victoria and New South Wales are to have a representation of nine-tenths in the house of representatives, and the house of representatives is to control the senate?

Mr. MUNRO: They will pay nine-tenths of the taxes!

Mr. ADYE DOUGLAS: What has that to do with it? The individual citizens will not pay more taxes, though conjointly they may pay more.

Mr. MUNRO: Taxation and representation must go together!

Mr. ADYE DOUGLAS: Have we not taken the United States Constitution as our example in framing this bill; but what does it say? Does it not say that the smallest states shall have the same representation as the larger states, and did not many of the small states at first remain out of the Union until it was arranged that they should have equal power?

Colonel SMITH: They were not offered the same conditions as are offered now!

Mr. MOORE: No!

Mr. ADYE DOUGLAS: Well, you can make a constitution between New South Wales and Victoria; but you will not have Tasmania, Queensland, and South Australia in it. We know what Victoria, has done in the past, she has tried to cripple the smaller colonies, and has put her foot down upon us, and a big foot it is. But we are not to be dragged into, this federation whether we like it or not. I am surprised that the hon. member who, told us about the sermon he heard yesterday, should turn round and go back upon himself, and jump jim crow in this Convention. In Tasmania his conduct will be reprobated, and we shall know how to treat him when he gets back there. We understand these things there, and we are not to be domineered over, notwithstanding this talk about the big colonies. The hon. member, Mr. Munro, happens to be at the head of affairs in Victoria just now; but a few months ago the hon. gentleman opposite was in his place, and at the next election the hon. member will probably be moved out again. First, we say that the senate and house of representatives shall be equal, and then we try to clip the wings: of the senate, and prevent them from doing anything; but I hope the delegates from the smaller colonies will not yield to this oppression, to this domineering, to these threats of the packing up of carpet bags and going away. Those who make them might as well go away, because the other colonies will not join them in the federation they propose. I trust that the

delegates from the smaller colonies will not be deterred from doing their duty towards those colonies by anything which has taken place here, or by the attempt which has been made to put down argument by force and threats that "we will take off our traps, and remain no longer amongst you." I say that the smaller colonies have justice on their side. They ought to be represented in the senate as was agreed upon [start page 732] at the starting point, and they should not be prevented from exercising the same rights and privileges there as the larger colonies exercise, without regard to their population.

Mr. J. FORREST: My object in rising is not to tell hon. members that I have changed my opinion, but to say that I intend to vote, as I said I would vote at first, for the amendment of the hon. member, Mr. Baker. It seems to me that this is the only clause in the bill which would give security to the colonies with small populations, and I feel certain that it would be very difficult indeed to induce those colonies to join the federation if we told them that both of the great colonies, Victoria and New South Wales, would have more representatives in the lower house than the whole of the other colonies put together, unless we could at the same time tell them that the various colonies would have equal representation in the senate, and that the powers of the senate and of the house of representatives, would be coequal and co-ordinate. It seems to me that the senate which will be chosen under this bill will be very different in its composition from our present upper houses, and will not be imbued with local politics and local disputes, but will be an august and experienced body and I hope will be thoroughly representative. If they will not be thoroughly representative, all I can say is, that I hope that some other means will be devised by which they will become as thoroughly representative as the lower house, and that no occasion will be left to those who are opposed to having any upper house to taunt them with not representing any one but themselves. It seems to me that the proposal to make the lower house superior to the senate can only result in lowering its prestige, in making it appear to the people of Australia an inferior body-a body with a disability upon it. Can any one say that the upper house, as it is proposed to create it under this bill, will be less experienced, less wise, less patriotic, and less able than the house of representatives? I believe that they will be, if anything, a superior body, thoroughly representative, wise, and patriotic, and I see no reason why we should be unwilling to give them full power to deal with all matters connected with the legislation of the continent in all classes of bills. We have heard a great deal, during our rather protracted deliberations, from the delegates representing the larger colonies which we have never heard from those representing the smaller colonies. We have heard no threats that they will pack up their carpet bags, and that their colonies will not accept the bill, from those representing smaller populations. We heard one large colony say, through its premier: "Victoria will not have the bill," and a little later we heard that "New South Wales will not have it." I think it will be time enough to say that these colonies will not accept the measure after it has been referred to them in the proper manner, and surely before we separate some means will be devised for referring this matter to the people of the colonies. But can any one at present say that the colony which he represents is prepared to accept the bill when we pass it? I say that no one here has authority to make such a statement. Equally the rule applies that if they cannot say the colony will accept it they cannot say that the colony will reject it. We have been sent to the Convention to frame a constitution in the best way we can, and when we have arrived at our conclusions will be the time to say whether the bill is one which the people can accept or not. We have come to the Convention, I maintain, on perfectly equal terms, although some of us have come from colonies containing small populations. We do not come here to be threatened; we, who represent small populations, have our duty [start page 733] to perform equally with those who represent large populations. We heard harangues the other day as to what the democracy of Australia would receive, and as to what the democracy of Australia would not receive. I suppose these sentiments came from those who would be leaders of this great democracy. It seemed to me that a considerable amount of jealousy was imported into the debates by the rival candidates-those who wish to be the sole leaders of what they call the democracy of Australia. I can only say that, as far as I am personally concerned, I have a duty to perform to the Parliament which sent me here, equally to that of the Premier of Victoria, and I shall have to answer for my vote when I return in the same way as he or any other member of the Convention will have to do. How can I, then, go back to the colony I represent, and tell the people that, by my vote, I left them to the complete mercy of the larger populations? They would naturally say, "Why you are going to annihilate us, and to leave us entirely at their mercy." I might reply, “They are magnanimous, generous people; they will not do anything that is wrong or harsh."

The answer would be, " Remember that we are now an autonomous state, and we do not wish to be left at the mercy of anyone." It would be no argument for me to say, "You must trust to the magnanimity or generosity of the people of the larger colonies." It seems to me that if union is to exist it must be on terms just to all the people of Australia.

Mr. MUNRO: Hear, hear!

Mr. J. FORREST: It would be ridiculous for any one of us, representing small colonies, to return to our homes and to tell the people that they would be represented in a house containing nearly 100 members by four members, and that they would have equal representation in the upper house; but that that representation would not possess co-equal powers with the representation of other colonies. I think the best course to pursue is to pass the bill in the best way we can, and in accordance with the views of the majority of members present. I hope, however, we shall have no more threats as to this or that colony not joining the federation.

Mr. MUNRO: That is what the hon. member has done!

Mr. J. FORREST: I have never said that the colony of Western Australia will not join, nor am I in a position to say so; neither am I in a position to say they will join. I am, I think, exactly in the same position as the hon. member for Victoria, Mr. Munro. Let us pass the bill in the best form we can, whether we gain our own ends or not, but let us have no more threatening, because I do not like it; besides, this is not the place for threatening.

Mr. PLAYFORD: I have been very much astonished in listening to the views put forward by some hon. members. We have been deliberately told that unless we give equal powers to the senate we go for unification, and that if we do give equal powers to the senate we go for federation. That is a most absurd statement. Hon. members well know that it depends upon the power which you give to parliament whether you take power from the senate or not, and not as to the distribution of that power between the two branches of the legislature. It is not a question as to whether you distribute powers this way or that as regards state rights; but it is a question as to whether you take from the states certain powers and give them to the parliament. We are now discussing, not the taking of powers from the states, but as to how we intend to distribute the legislative powers of the commonwealth between the two houses-the senate on the one hand and the house of representatives on the other; and the question of unification or federation does not come in. It will be [start page 734] just as much a unification, even if the senate have very small powers compared with the other house, if you take away the powers from the states, and give them to the central parliament as a whole; and it will be as much a federation if they leave large or small powers. The question of unification has nothing to do with the point at present under discussion. The hon. member, Mr. Thynne, asked me one question which I will attempt to answer. Responsible government, he asserted, could adapt itself to any circumstances. I will ask the hon. member does he know where responsible government has ever adapted itself to the circumstances of two co-equal houses? Nowhere in the world. I suppose the hon. member has read history sufficiently to enable him to know that in England we never obtained responsible government until the coequal power was taken from the House of Lords. At one time, in fact, that House had greater power than the Commons; but we never obtained responsible government in the mother country until the power of the House of Lords was taken away and lodged in the House of Commons. I hold to the opinion I have previously expressed on this point, that I believe you cannot carry on responsible government satisfactorily with two absolutely coequal houses. That is an opinion which I have expressed from the first. I have also expressed myself to the effect that personally I have not the slightest objection to ask the people of this great continent to agree to a commonwealth in which the two houses shall be coequal, and in which the executive shall be elected by the two houses in the same way as is done in Switzerland. I find, however, in speaking to hon. members on this subject, that there are very few who agree with me. Even a number of those who are in favour of coequal powers being given to the senate will not go in for doing away with responsible government. Therefore, so far as this question is concerned, it seems hopeless to argue upon it. I hold to the opinion that responsible government cannot work satisfactorily with two houses coequal in power.

Another point, upon which I wish to say one or two words, has reference to the statement which has been made to the effect that without equal power the small states will be ridden over rough-shod by the larger states that, as the last speaker stated, the smaller states will be practically at the mercy of the larger states. Will any intelligent man take up this proposed constitution bill and examine the proposals contained in clause 55, and tell me that the smaller states will be at the mercy of the larger states? First, they have equal representation; secondly, they have equal powers on all matters, excepting money bills, relating to the ordinary annual expenditure on the ordinary service of the year, and dealing with taxation. They have the power of amendment in regard to all but two classes of money bills-the power of absolute amendment coequal with that of the other house. With regard to those two particular classes of bills, they have a right to suggest to the other house amendments in any clause or parts of a clause. The Constitutional Committee have adopted precisely the mode adopted in the colony of South Australia, where it has been in force for between twenty or thirty years. We have worked under that system for between twenty or thirty years. The upper house have the right to make suggestions, and those suggestions-taking the case as showing how the system would work if it were adopted for the commonwealth-have been as respectfully treated and considered by the lower house as any amendment which has ever been made in connection with any bill. They have been quietly and intelligently debated in the lower house; they have been [start page 735] agreed to either with or without amendment, or disagreed to, as the case may be, and they have been sent back to the legislative council precisely in the same way as is proposed here. Ever since we made the compact in consequence of the claim of the Legislative Council in South Australia to coequal powers with the House of Assembly in dealing with money bills, except as regards initiation-ever since we entered into that compact, nearly thirty years ago, we have never had the slightest trouble with regard to the working of the compact. It has worked in the most harmonious manner, and, so far as the Legislative Council is concerned, I have never heard a single member of that body-and I have been in the Parliament since 1868-utter a wish that the compact should be broken in any way, though in the Lower House a late treasurer brought forward a motion only a year or so ago to the effect that we should break the compact between the two houses because it gave the Legislative Council too much power. With the right on the part of the senate, in the first instance, to veto any measure brought before it; with equal powers in respect to all proposed laws, except those imposing taxation, and appropriating the necessary supplies for the year, which the senate may affirm or reject; with a right to insist that any bill dealing with new taxation shall be so subdivided that only one subject at a time can be dealt with-with the senate possessing all these powers, and with the immense preponderance of votes which the smaller colonies will have in the senate, how can any man in his senses say that the smaller colonies need have any fear whatever of being overridden in the legislation of the country if this proposal is adopted? I fail to see any such danger. I try to look at the matter with a dispassionate eye. I try to look at it from the standpoint of a smaller colony, being myself a representative of a small colony. I think I can foresee as well as any member here what the course of legislation is likely to be, and I have come to the honest conviction that if these clauses are carried the senate will have all the powers they ought to have, and that to give them any more power would be injurious to the interests of the commonwealth. The people of the community as a whole must rule. You cannot get away from that, and if you do not provide that this shall be to some degree, at all events, the effect of your legislation I fail to see how it will be possible to induce the larger colonies to come into the federation. I shall support the clause as it stands in preference to the amendment. I desire to say that I do not agree with the amendment of the hon. member, Mr. Wrixon. As to the bugbear that has been raised, that the smaller colonies are going to be overridden, and their influence destroyed by the larger colonies, if we do not give the senate equal power with the house of representatives, I contend that that is a mistake. It is a myth; it does not exist, and will not exist if the constitution is adopted in the form now proposed.

Mr. KINGSTON: I shall be found recording my vote against the amendment, and as the position which I now intend to take, may at first sight appear to be somewhat inconsistent with the sentiments I have previously expressed, I should like to give my reasons for the vote I intend to record. My reasons are shortly these: that the senate, as it will be constituted under the provisions of the bill which we have before us, will be entirely different from the senate as I hoped it would have been constituted under the measure which recommended itself to the adoption of the Convention. A good deal was

made during the course of the initiatory debate of the resemblance which it was supposed might exist between the senate and the upper branches of legislature as we are generally [start page 736] accustomed to them; but emphasis was laid, and it appears to me most properly, on the probability that there would be little or no resemblance between the two chambers, but that the senate, as created by the constitution of the commonwealth, would, be simply a body elected by the same electors voting in different constituencies. Now, I would venture to ask if this is the position under the bill? I hold that it is not; that it is altogether different. Instead of the senate representing the same body of electors as those who will return members to the house of representatives, it will represent a much more limited class. We have provided that the senate shall be chosen by the two houses of the various local parliaments. We have distinctly prohibited the people of the various states from the exercise of any power which they might desire to possess as regards the direct choice of their representatives in the senate. The sense of the Convention was taken on a direct motion affecting the question, and we now find it declared as the deliberate will and purpose of the Convention that the people as a whole shall be deprived of any direct vote in the choice of senators, and that the power of election shall be confided to the two branches of the local legislature. What does that, amount to? It amounts to this: That an equal voice will be accorded in all cases which are most favourable to the exercise of popular rights to a limited class, representative not of the general body of the people, but of persons possessing a property qualification. That, I say, will be the case in the most favourably situated colonies. In all such colonies there is a provision requiring a property qualification in the electoral franchise for the upper house; but, further, there are cases in which it can hardly be said that the members of the upper house are, in the slightest degree brought in touch with the main body of the electors by any system of representation. We have before us the case of the great colony in which we are at present assembled. Here the popular voice is in no sense or degree exercised in the election of members of the upper chamber. A similar rule obtains in Queensland and New Zealand, and also, I understand, for a limited time in Western Australia. Is it fair, I ask, under all these circumstances, when the senate, as it appears to me, is simply created for the protection of state rights and state interests, to, say that we will permanently-or at least until an alteration is made in the constitution-deprive the electors of the different states of the opportunity of settling this matter for themselves as they think best? I would have been perfectly agreeable and I have hitherto argued in favour of giving the senate large powers in the direction of the protection and preservation of state rights and state interests-if the senate were constituted by the direct voice of the people; but I am not prepared to advocate any such course when I find that instead of a senate of the character which I had hoped would be constituted under the constitution that we propose to adopt, we have altogether a different body-one in which there is no guarantee that the voice of the people will prevail-and that an equal vote in the decision of the election of senators is confided to sections of the community in some colonies, and in, other colonies to those who may simply happen to be the nominees of the government that is in power. A great deal was previously made of the improbability of a deadlock, and, of course, if the electors were the same, though divided into different constituencies, as was well pointed out, there would not be much probability of any such lamentable occurrence; but we have had some experience of deadlocks in other colonies, and, although we need not fear them if the people to whom the senate were responsible were the same people as [start page 737] those to whom the house of representatives was responsible, yet when we notice, and must notice, that they are not the same, but altogether a different constituency, and there is no power given to the local legislatures, however much they desire to alter the provisions on this score, then it seems to me that there is great risk of a deadlock. I, for one, have no faith in a senate that is constituted without direct election by the people-over which the people have no control, or over which the people have only, the control, to the most limited extent, which is provided here-and I will never give a vote either in this Convention or elsewhere for confiding larger powers to such a senate than are proposed within the four corners of the bill. Rather should I be found supporting any amendment which might have the effect of confining the attention of the senate to matters with which they are properly charged. I have always understood that the object of calling the senate into existence was the preservation of state rights and state interests. I thoroughly sympathise with the suggestion which during another period of this debate was made, that within the four corners of the act which we propose to pass we should for the guidance of the senate lay down the principle which we hope and expect will direct them in the discharge of their senatorial duties. So far as I can understand that principle, it is that the will of the people as expressed

in the house of representatives should prevail, and should not be interfered with by the senate in the slightest degree, except in cases where state rights and state interests are involved. Holding these views, if an opportunity were given me to vote on an amendment such as that which was indicated, by which the senate's power of amendment was to be confined to cases in which by their own deliberate resolution they affirmed that it was necessary for them for the protection of state rights and state interests to amend any particular measure which was sent up to them, I should be found voting in favour of it. But the way in which we have got it at present is that the senate-a body which appears to me to be constituted in a highly objectionable manner, out of touch with the people, removed by the express provisions of this constitution from the possibility of popular control-in a great many cases are given unlimited powers of amendment-a power of amendment which they could exercise whether state rights or state interests were or were not involved. I think it is a bad thing that they should have these powers, and, as regards the matters which we are now discussing, having no faith in a body so constituted, I shall do whatever I can to prevent their having the larger powers which it is sought to confer upon them, and I do hope that I shall have an opportunity to vote for a limitation of the authority which even this clause proposes to confer upon them.

Mr. SUTTOR: With regard to the senate, it is my intention to vote for the whole bill, and nothing but the bill. I desire to compliment the sub-committee who drafted the bill on the able manner in which they dealt with this important question-on the very able compromise which they have brought about. It appears to me that this compromise might be described as what is known in mechanics as the result of a balance of forces. We began this debate with extreme views on all sides. We had the hon. and learned member, Mr. Deakin, on the one side, and the hon. and learned member, Mr. Barton, on the other, whom I described, in the address which I had the honor to deliver to the Convention on the resolutions, as being the two poles of the discussion. I am convinced that the more we discuss the question the more we shall be satisfied that the sub-committee, which perhaps consisted of the most able members of the Convention, have, in their deliberations, made a happy compromise, [start page 738] which all the colonies should accept. I confess that I cannot but express my surprise at what was said by the hon. member for Western Australia, Mr. J. Forrest. He is one of the pets of this Convention. His colony has four representatives to commence with, when, so far as population is concerned, it is only entitled to one member and a half.

Mr. HACKETT: How does the hon. member make that out?

Mr. SUTTOR: There is to be a member for every 30,000 people, but Western Australia will start with four members, although it has a population of only 40,000.

Mr. HACKETT: The hon. member should wait for the census!

Mr. SUTTOR: The hon. member will not say that the population is 60,000, and if it were 60,000, Western Australia would be entitled to only two members, but it is to get double the number that it is entitled to. Western Australia will also have the same representation in the senate-eight members-as is given to the population of the larger colonies. Seeing the eminent gentlemen who were on the sub-committee, I am willing to put myself in their hands and to vote for the bill as brought down by them.

Mr. LOTON: The question before the Convention at the present time with regard to the powers that the senate shall have in the federal parliament, I think is worthy of a little more consideration. The hon. delegate from South Australia, Mr. Kingston, put before us the fact that we have given the senate equal powers with the house of representatives on a very great number of subjects-on all subjects, in fact, as was pointed out by the Premier of South Australia, with the exception of appropriation and taxation. I think that the hon. member, Mr. Kingston, also pointed out that the senate, as constituted, would not be worthy of the same amount of confidence, because of the manner of its election, as it might otherwise have been. At the same time, if he can afford to give the senate the same power as is assigned under about thirty clauses in this bill, how is it that the hon. member cannot go a little farther, and give them the same power under the other two clauses? Now, in considering the question of the power of the senate and of the house of representatives, it is very

important to my mind to see exactly what powers it is proposed to confer on the federal parliament. What are the powers? The powers are contained in thirty-one clauses; but we have been told on several occasions that finance means government, and government is finance. Well, the very subject on which it is intended to limit the power of the senate is the very question of finance. One of the first subjects, I suppose, to engage the attention of the federal parliament would be the question of the tariff. What would be the relative proportions and powers of the different states when the question was considered? Take the four smallest populated colonies at the present time. Their representation in the house of representatives would not equal the representation of either Victoria or New South Wales at the present time. I leave out New Zealand, because I suppose they are too large at the present time to think of joining the confederation. But, taking the four smallest colonies, their power in the house of representatives would not equal the power of Victoria or New South Wales. And the same in regard to the amount which they would be taxed. The taxpayers will have to pay equally; the tariff is to be uniform.

Mr. MUNRO: The larger colonies will pay the larger amount!

Mr. LOTON: Not exactly. They are to have a uniform tariff, and Victoria, supposing New South Wales stands out, would be able to dominate the four smallest populated colonies, by imposing a tariff [start page 739] against the outside world. We are to have, I suppose, an extraordinary state of things when we enter the federation between Victoria and New South Wales. Victoria is quoted as a highly protectionist colony.

Mr. MUNRO: You could throw out the bill, could you not?

Mr. LOTON: New South Wales, on the other hand, boasts of being a free-trade colony.

Mr. DIBBS: What's that? There is no boasting about it!

Mr. LOTON: I have noticed for some time time past, in looking down the customs tariff, that New South Wales imposes against an outside colony a duty of a penny in the 1b. on butter. That is not free-trade, at all events, for the working men of New South Wales.

Mr. DIBBS: Our free-trade is a sham!

Colonel SMITH: A good deal of it is!

Mr. LOTON: However, I suppose we shall have an extraordinary state of things between Victoria and New South Wales, and if they join the federation, as no doubt they will, they can easily dominate the tariff of the commonwealth.

Mr. MUNRO: But the others can throw it out!

Mr. LOTON: What will be the important question that will arise in the first instance? It will be the question of imposing a protective tariff against the outside world, and Victoria, there is no doubt in the world, will say, "We want, we must have, and we shall have, if it is possible, a high protective tariff against the outside world"; and New South Wales possibly will follow her because she can afford to do so; but at the present time the other states are not, I say, in a position, and will not be in a position for a long time to go in for a policy of that kind. I shall not follow that argument further than to state it; but that is my opinion. Now, take the otherside of the question. What can these four outside colonies with the smallest populations do, even if you give them co-ordinate powers on these particular questions, against New South Wales and Victoria combined?

Mr. BIRD: Veto them!

Mr. LOTON: Very little; they have not the power.

Sir JOHN BRAY: They can reject!

Colonel SMITH: The domination is all the other way!

Mr. LOTON: They can reject the whole of a bill, whatever power you give them, but not a portion. What would the voice of the thirty-five members for these outside colonies be in a senate of 130 members? What would be the use of their voice in the senate unless you give them some power? I maintain that unless you give equal power to the members of the senate on the questions of appropriation and taxation you may as well do away with the second house altogether. If they are simply to register the edicts of the house of representatives we may as well do away with the senate.

Sir PATRICK JENNINGS: I feel bound to make an explanation. In discussing the constitution of the senate in the debate on the main question, I expressed the opinion that we ought to have a strong and powerful senate. I believe we ought to have a variety of distinct opinions as to what the measure of strength should be of that senate. I may plainly say that after reflection, and looking over the mode by which the committee to whom the task was given of endeavouring to reconcile these conflicting opinions, I am impressed with the conviction that they have decided in a wise and moderate manner. I shall not refer to any ebullition of feeling on the part of that remarkably stalwart stripling of a new colony in the shape of Western Australia, who comes forward and asserts itself with the most manly vigour. I feel that the exuberant patriotism of those who have come so far ought to be [start page 740] admired if we cannot all agree with them. But I think they have really inverted the proposition. I think this is not a case of the larger states domineering over and dominating the smaller states. I am very much inclined to think that the smaller states are in the position of lecturing and hectoring and domineering over the larger states. We know that the representation in the senate is perfectly equal in each case; and we know, moreover, that this idea that New South Wales and Victoria will be always united to oppress the other colonies, is about the most unlikely thing in the world. I think they are very likely to split; and if they disagree, then our friends from South Australia can form a corner on the one side, and our friends from Queensland can form a corner on the other, and they make common cause with whichever state they think is right. But I do not believe there will be a tendency to split up between colonies having all the same opinions. There will be parties in the senate, as there will be parties in the house of representatives, and that party feeling will be the solvent of the questions before them, and will prevent one mass vote being given by the senators. We cannot follow the model of the United States Constitution, because our constitution is totally different. We cannot, as a senate, perform executive functions when we have responsible government and a ministry responsible to the house of representatives. Therefore, I think any allusion to the constitution of the United States Senate would be altogether in vain; and believing, as I do, that a happy mean has been arrived at, I shall not be inclined to support any amendment of this clause.

Mr. HACKETT: I hope the Convention will allow me a few words in order to explain my position, as I find myself, I regret to say, differing front a majority of my hon. colleagues front the colony we represent. In fact I find myself in the smallest minority possible-a minority, I think, of less than the number of representatives the hon. member, Mr. Suttor, would allow us, according to our population, in the senate. But perhaps hon. members will allow me, in the first instance, to say a word as to some indignant remonstrances that fell from the hon. member, Mr. Deakin, in debating this clause on our last day of meeting. I might explain that the vote I gave on that occasion was given in consequence of a comparison of language, and solely for that reason-not with any idea of altering the powers of the two bodies, but solely from a comparison of the language of clause 55 with that of clause 54. I was under the impression that the words in the 1st subsection of clause 55 and the words in clause 54 were meant to cover the same subject, and from long experience we all know how highly disadvantageous it is, and how greatly it conduces to friction and trouble if the selfsame subject be referred to and defined in different language. If it were intended to attach to the words "appropriating any part of the public revenue," a meaning different from that attached to the words "appropriating the necessary supplies for the ordinary annual service of the government,” it is not explained. I was left under the impression that they were meant to cover the same ground, and on that conclusion I voted to

bring them into harmony, and consistency. I must say that, I remain, to a great extent, unconvinced by the many arguments used by advocates of what may be called the popular view-that is to say, I do not share the apprehensions of many hon. gentlemen that if you endow these two bodies with coequal powers, there is any fear of an absolute stoppage of government, as is, I suppose, meant by the use of the word "deadlock." There is almost certain to be a little friction at the commencement; but after a while each body will find that it is of no [start page 741] use attempting to coerce a body which stands on as strong ground as itself, and ultimately the order of the day will be concession and compromise. Still less am I moved by reference to the power of the people. The power of the people, it is said, will be lodged in the house of representatives. But go round the question as you may, put it into any shape or form you like, it remains the same thing-for many years to come the house of representatives will be the house of two states, while the senate will be the house of all the states. New South Wales and Victoria, as is well known, will outvote the other states in the house of representatives by at least three, and perhaps four, to one. Therefore, I should not accept this compromise if I believed the clause would take away any of the essential powers of the senate in asserting the manifest rights of the smaller states. But does it mean such an inroad upon their powers and privileges? Is it worth our while to accept an amendment rejecting this compromises course which, to put it in plain words, will have the effect of wrecking the whole scheme of federation.

Mr. J. FORREST: Who says so?

Mr. HACKETT: We are assured by gentlemen who speak in the name of a majority of the people of Australia that that will be so.

Sir JOHN DOWNER: We had better go without federation than have it on their principle!

Mr. HACKETT: For my part, I think it would be less cumbrous and more satisfactory if the right of amendment were given in the same form as that in which it is given in the South Australian Constitution, and in which it is given and exercised in Tasmania. This compromise goes as nearly as possible towards giving the senate the real power as anything that can possibly be produced in default of the American system.

Sir JOHN DOWNER: Does it give them the real power?

Mr. HACKETT: Above all, I protest against it being said that we are accepting a degrading compromise-that this compromise, if acted upon, would put the senate in a degraded and undignified position. How can that be so? What difference is there between the course proposed and things as they now stand in some of the colonies? In those colonies in which the upper house possesses the right of amendment if it desires to make an amendment it sends down the amendment in the bill. Under this compromise it would send down the amendment with the bill. If this Convention is to break up upon such a ground as that, upon such mere straw-splitting as the question whether bills shall be sent down with amendments in them or tacked on to them, the sooner we give up all ideas not only of federation, but of political self-government, the better, because we are unfitted for either. Sir, something of this kind has been and is in operation in at least two colonies in the group. The hon. member, Mr. McMillan, seemed to think that the arrangement by which an amendment in a money bill could be communicated by message to the lower house, though nominally in force in South Australia, was not operative. All I can say is, that in the first assembling of our two houses in Western Australia, when this very question came up, we carefully studied matters in South Australia, and we were convinced, from the frequent, the effective, and the conciliatory application of the system, that it was a course of procedure that deserved consideration. The result was that in the very first question that arose between our two houses we adopted the South Australian mode of procedure, and in consequence an amendment of a highly desirable character was made in legislation relating to finance. Therefore, I look upon the practice as the established practice of [start page 742] Western Australia as well as of South Australia. This power, so far from being degrading, is really a power which is lodged in another branch of the parliament. I refer to the governor representing the Queen. Under most of our constitutions, he can communicate-I do not say as to money bills, but as to other legislation by

message any amendment he thinks it desirable to make in a bill after it has passed both houses. And the same procedure would be adopted as to dealings between the senate and the house of representatives in regard to financial legislation. I am prepared to vote for this compromise, and mainly on these two grounds. We have already decided that bills dealing with money questions-bills imposing a tax or appropriating any part of the revenue-shall originate in the house of representatives. That clause was carried unanimously. What is now proposed? Not only that bills dealing with money questions shall originate in the house of representatives, but that all amendments dealing with money bills shall also originate in that house. I say that the advocates of this compromise are entitled to press that parity of reasoning to its utmost and most stringent logical consequences. In fact, the relationship that will exist between the senate and the house of representatives as to amendments will be almost the same as that which exists between the governor and the house of representatives as to money bills-that is to say, the governor may and does suggest a money bill for the consideration of the house of representatives. The senate is to do almost precisely the same thing. It is to send amendments in money bills to the house of representatives for its consideration. Therefore, if we look to mere logical consistency, the proposal to allow the amendment of money bills to originate in the lower house as well as the bills themselves, recommends itself to the most favourable consideration of the Committee. The second reason why I shall vote for this compromise is that it leaves the door open for evolution. It is quite possible that in years to come the senate may prove itself to be the more trusted, the more able, and the more patriotic body. If so, it will be the most popular body, and no number of constitutional shackles which you can devise will take away from it its power, or reduce it one scintilla. On the contrary, however you may bind and fetter it, it will discover means to make its wishes known and to enforce them; and the people also will find ways to support, them. This compromise rather indicates than determines the balance of political forces in the constitution. It leaves their ultimate adjustment and readjustment to time. Time, and time alone, can show us where the political equilibrium will lie; and it is no small credit to the framers of this compromise that they have borne that so clearly in mind and have allowed within certain limits the senate to exert the power which its own conduct will make apparent and effective. For this reason I shall have great pleasure in supporting the clause as it stands.

Mr. BAKER: At the request of the hon. member, Mr. McMillan, I ask leave to withdraw my amendment in order to propose another. If my amendment, as I first proposed it, is negatived, the amendment which the hon. member, Mr. McMillan, wishes to move will not be admissible. I would like to say a few words in reply to what has been said on this question. We have heard a great many arguments which were used before on this subject; but we have had the matter put in a somewhat new form by two of my colleagues from South Australia. The hon. members, Mr. Playford and Mr. Kingston, both put it that they are prepared to make sacrifices.

Mr. PLAYFORD: I never used the word!

Mr. KINGSTON: I did not!

[start page 743] Mr. BAKER: The hon. member, Mr. Playford, did not use that word, but he said he was prepared to make a compromise; he did not advocate that which he himself thought absolutely the best, but he was prepared to give way in order to bring the matter to a conclusion.

Mr. KINGSTON I did not say anything of the sort!

Mr. PLAYFORD Nor did I!

Mr. BAKER: I understood the hon. member, Mr. Playford, to put it that responsible government must exist; and, in order that this fetish of responsible government should exist and be carried out, he was prepared to sacrifice the interests of South Australia.


Mr. BAKER: I have heard of people who were prepared to sacrifice themselves on the altar of their country; but I never before heard people talking of sacrificing their country on the altar of responsible government.

Mr. PLAYFORD: That is unfair!

Mr. BAKER: I do not think it is at all unfair. The hon. gentleman has a right to his own opinion.

Mr. PLAYFORD: The hon. member has no right to put words in my mouth which I never used!

Mr. BAKER: The hon. member did not use those very words; but that was, as I understood him, the effect of his arguments. The hon. member, Mr. Playford, has told us that this system of suggestion which is proposed in this bill has been in force in South Australia for twenty years, and it has always worked well; that all the suggestions made by the Legislative Council have been respectfully treated. As a matter of fact, the Legislative Council never does make any suggestions at all with respect to tariff or appropriation bills. They never think of making a suggestion with regard to an appropriation bill. They never make any suggestion in the case of a tariff bill.

Mr. PLAYFORD: Yes; they have done so!

Mr. KINGSTON: And also in the case of loan bills!

Mr. BAKER: I do not remember any suggestion having been made. If the hon. member says that ignoring suggestions is treating them respectfully, he is quite right. That is the usual treatment they meet with.


Mr. BAKER: When a bill comes to us which is technically a money bill, but which is really a bill dealing with a question of general policy, and containing a few money clauses in it, when we make suggestions that do not deal with the money clauses, they are generally respectfully treated; but if we venture to make suggestions on money matters, they are ignored.

Mr. PLAYFORD: Nothing of the sort!

Mr. BAKER: I assert that they are. I and those who think with me are afraid that the same practice will be carried into effect with reference to any suggestions made by the senate if the clause is passed as it now stands.

Amendment, by leave, withdrawn.

Amendment (by Mr. BAKER) proposed;

That the word "except," line 3, be omitted.

Sir JOHN BRAY: I do not think I should have troubled the Convention with any remarks on this subject, but for the fact that an hon. member from South Australia, Mr. Baker, has displayed such lamentable ignorance of what is going on in the Parliament of that colony. The hon. member, to my knowledge, has been a member of the Legislative Council for a great number of years, yet he tells us, who know more about it than he does himself, that this power of suggestion, exercised by the Legislative Council of South Australia, is in fact a myth,-that when suggestions are made, they are, generally speaking, ignored.

Mr. BAKER: I did not say so!

[start page 744] Sir JOHN BRAY: The hon. member said that suggestions were made, and, generally speaking, were not respectfully considered.

Mr. BAKER: I did not!

Sir JOHN BRAY: And the hon. member took the hon. member, Mr. Playford, to task for having said that the suggestions of the Council were always respectfully considered. He cannot deny that.

Mr. BAKER: I do not deny that!

Sir JOHN BRAY: I say it is a mistake. I am sorry that the hon. member said that. If we are going to question what each member likes to think, and to put our own interpretation on any explanation that he chooses to give, that is not the way to forward the business of this Convention. Our business is to determine what we shall do to meet an undoubtedly very difficult question. I will point out to hon. members as a recent instance of what took place in South Australia, that, in 1887, a tariff bill was passed by the Legislative Assembly. I have here a copy of the proceedings of the Parliament of South Australia. The Legislative Council made certain suggestions with respect to that tariff bill-

Mr. PLAYFORD: Twenty-five altogether!

Sir JOHN BRAY: I will not trouble the House by reading them all; but they suggested that men's boots and shoes, No. 6 and upwards, should be charged 33s. per dozen pairs, glass bottles at certain rates, bags, sacks, and so on, that between twenty and thirty different items should be included in the tariff. A message was sent to the Assembly, and a day or two afterwards it was resolved that the suggestions of the Legislative Council should be accepted.

Mr. PLAYFORD: Every one of them!

Sir JOHN BRAY: That is as clear proof as possible that this practice of the Legislative Council making suggestions has worked well in South Australia, and the Legislative Council have not hesitated to exercise their power to make suggestions.

Mr. PLAYFORD: And they were always respectfully considered!

Sir JOHN BRAY: Nor has the Assembly, on the other hand, hesitated to consider their suggestions fairly and respectfully, and, where possible, to agree to them. I must say, as one who tries to take a fair and impartial view of this question, that I believe both sides are making too much of this particular matter. I do not think this is the crucial question in the bill. I have sufficient confidence, not only in the parliaments of the different colonies, but also in the people of Australia generally, to believe that they have no desire to do a wrong. Even if it were possible, and I do not think it possible, that the governments of New South Wales and Victoria were both anxious to do wrong to the people of the other colonies, I do not believe that the people of Victoria and New South Wales would follow their governments in attempting, such a course. I say, speaking as an Australian, that I believe the Australians desire federation. I believe they have confidence in each other, and I believe that the 1,000,000 of people-speaking in round numbers-in the other colonies have perfect confidence in the 2,000,000 people in New South Wales and Victoria having the same objects, the same interests, and the same desire to maintain the prosperity and advancement of the whole of the colonies. I say on the other hand that I shall be quite satisfied to give the senate full power with respect to everything except the ordinary appropriation bills. I think it would be a lamentable thing to give the senate power to interfere with the ordinary annual supplies of the government. It would possibly clog the whole of the work of the government, and the senate would not be directly responsible to the people. I [start page 745] do not want to go into the question of what is federation, or unification, or anything else; but I take it that it is the desire of every Australian who wishes to see free government in Australia to have

the government of the people by the people, and not by the states, and whether I represent a small state or a large state I will be no party to giving any authority or any government for the time being the right of nominating persons who shall exercise a power superior to that exercised by the people themselves. The question now before us as to the mode of adjusting the differences between the two houses will settle itself in the course of time as the two houses proceed with their work, and I, for one, would deprecate the tying down too tightly in a bill, and saying too definitely what the powers of each house are to be. I am not going to pronounce a definite decision on the matter, however, until I hear clearly what the amendment of the hon. member, Mr. McMillan, really is; but whatever form the government may take, I, as one of those elected by the people, claim that the people of Australia must in the end make their will prevail. It is impossible for any of us, whatever the colony from which we came, to suppose that the 2,000,000 people in New South Wales and Victoria would consent to be dictated to by the senate as to the amount of taxation that they are to endure, or as to anything more than the disposal of that taxation for the purposes of the federal government. It appears to me that the really important part of the bill, that relating to finance, has to be decided later. I do not propose to go into this matter now, although to a certain extent it is connected with this clause, because it really provides how taxation measures are to be dealt with; but I ask hon. members on either side not to attach too much importance to this question. I say that anybody who talks about one colony making a sacrifice for the sake of another does not understand it, and will have to begin at the beginning before he can know anything about it. There is no sacrifice whatever. The senate is composed of an equal number of representatives from each colony, and the people have the right to elect a certain number of members to the house of representatives, and I have the fullest confidence that those who are elected to the house of representatives will deal justly with the whole of the people of Australia. I think we ought to ridicule the idea that the people of New South Wales and Victoria would be so utterly wrong headed as to combine together merely for the purpose of doing an injustice to the other colonies. I do not believe that it is possible that the governments of these colonies could combine for this purpose, and I ridicule the notion that they could get any considerable portion of the people to follow them if they adopted such a course. I ask hon. members to consider the question reasonably. I should like representatives from the smaller colonies to consider whether the people of Australia are to have a full voice in the disposal of taxation. No form of government should deprive them of the full opportunity of exercising proper influence in the raising and disposal of taxation. It appears to me that the most important provisions in the bill are those relating to the disposal of the revenues of the federal executive council, and I trust that we shall make up our minds not to leave them as they are now. The surplus revenue will probably be returned to the people; but I quite agree with the hon. member, Mr. Thynne, that the uncertainty as to the amount to be returned, or as to the time at which it will be returned, must embarrass the treasurer and the government of each particular colony, if there is any doubt whatever about it. If we make up our minds to place in the hands of the [start page 746] federal government a considerable revenue, we should also make up our minds that they shall have full use for that revenue. I shall listen with care to the amendment of the hon. member, Mr. McMillan, but in the meantime I ask hon. members not to insist on anything so unreasonable as that the senate which represents the states shall have the power of overriding the representatives of the people in the taxation of the people, and the mode of disposing that taxation when raised.

Mr. BAKER: I am glad that the hon. member, Sir John Bray, has called the attention of the Committee to the particular suggestions made by the South Australian legislative Council to the House of Representatives in 1887, because they entirely prove the statement which I advanced that suggestions when made on matters of detail, and unsubstantial, were considered and agreed to; but that they would not be considered at all, if they materially affected the provisions of a money bill.

Sir JOHN BRAY: Show it by the records!

Mr. BAKER: I shall show it by the record of a motion moved by the hon. member, Sir John Bray, in the very case which he brought before the Committee this afternoon. First of all, the ruling of the Speaker was called as to whether it was in the power of the Legislative Council to make the Small suggestion which they had made. The Speaker ruled that it was in their power, and the hon. member, Sir John Bray, then moved:

That the ruling of the Deputy-Speaker be printed and taken into consideration on some future day, and that in the meantime the suggestions of the Legislative Council re the Tariff Revision Bill, not being such as materially affect the policy of the bill-

That is to say, being trivial amendments. be considered in Committee.

Does not that prove that in substance I was right, although I admit that my memory was at fault, and I apologise, for saying that the Legislative Council never made any suggestions in a tariff bill?

Sir HENRY PARKES: It does not much matter whether they did or not!

Mr. BAKER: No. However, these suggestions were agreed to because they did not affect the policy of the bill.

Mr. PLAYFORD: The policy of the bill was protection-they would have thrown the measure out if they did not believe in its policy.

Mr. BAKER: The House of Assembly said it does not matter at all in these small questions, inasmuch as they do not materially affect the policy of the bill.

Mr. MCMILLAN: I think at this stage I had better let the Committee know the character of my amendment.

The CHAIRMAN. This amendment must be dealt with first.

Sir JOHN BRAY: The hon. member, Mr. Baker, has withdrawn his amendment, and only proposes to strike out the word "except." We want to know how that would fit in with the amendment of the hon. member, Mr. McMillan?

Mr. MCMILLAN: I shall not refer to my amendment if it is not in order. I simply wish to say that when the amendment of the hon. member, Mr. Baker, is disposed of-I hope in the negative-I shall propose my amendment.

Mr. MUNRO: The hon. member had better go on with it at the right time!

Mr. MCMILLAN: I understand that, although we are working under the rules of the House of Commons, some amount of latitude is allowed us.

Mr. MUNRO: We shall not be allowed to speak on the hon. member’s amendment now!

The CHAIRMAN: I would point out to the Committee that if I allow the hon. member, Mr. McMillan, to do what he proposes, I shall have to allow every hon. member a similar privilege, and I think that would lead to a great deal of irregularity, which is undesirable.

[start page 747] Mr. MCMILLAN: I understand that the hon. member desires to omit the word "except," in order that a sweeping amendment may be brought forward, giving the upper house the right to interfere with the ordinary appropriation bill. From that I absolutely dissent. As I said before, there is a very great difference between the two cases. In an appropriation bill we simply appropriate money on a policy which has been previously agreed to; and it is with regard to the appropriation, and not with regard to the details of the bill, that I desire to give the privilege to the upper house of dealing with it; consequently, I wish to say that, notwithstanding the amendment which I intend to move, I am utterly opposed to the upper house amending an appropriation bill.

Sir JOHN DOWNER: If the views of the hon. member, Sir John Bray, were adopted and met with general acceptance, I think it would be absolutely unnecessary for us to bother about a senate at all. I understood the hon. gentleman to say, with great emphasis-certainly he was speaking in a manner in which he did not speak previously-that, so far as federation was concerned, the voice of the people of Australia, that is, of the individual units, must be predominant; and for that reason, and, as I understood the hon. gentleman to say, for that reason alone it would be impossible to think of giving the senate powers co-ordinate and coequal with those of the house which directly represented the people. I can only say that if those are the views of the hon. gentleman, let him carry them out to their legitimate issue, and the colonies will cease to exist as entities; the unification of the empire, so far as it relates to the colonies, will be complete, and our individuality as colonies will be absolutely destroyed. It is quite impossible to talk of the voice of the people being absolutely predominant, and in the same breath to state that there shall be a senate which is to have authority which may not necessarily work in the same direction as the general voice of the people. I agree with the hon. gentleman that the voice of the people must prevail, but with those safeguards in respect of each colony which are absolutely necessary to preserve them in their present independence; and it is from that point of view that, throughout, I have maintained that, to make this exception in respect of money bills or in respect of taxation bills, was, at the very start, to indicate the inferiority of the senate, whilst all the provisions of the bill go to show what a superior body we intend to create. The hon. gentleman says no constitution could possibly exist with coequal authority in the senate and the house of representatives; and at the very same time he has before him the only enduring democracy that the world has ever known, in which for upwards of 100 years that authority has existed, at least co-ordinate, or, where they were not co-ordinate

Mr. GILLIES: Not nearly co-ordinate!

Sir HENRY PARKES: Where is that?

Sir JOHN DOWNER: America.

Mr. PLAYFORD: There is no responsible government there!

Sir JOHN DOWNER: I will say a word about responsible government in a minute, but I take it, the government is for the people, and not the people for the government. So far as America is concerned, the power of the senate is not merely co-ordinate with that of the house of representatives, but in some particulars it is absolutely supreme; and yet no one will admit that the senate has lost repute or has been lessened in the opinion of the people. On the contrary, we know perfectly well that the very humblest of the people look with veneration to the senate, whilst they are extremely critical about the body which, if this argument were followed out, would more completely repre- [start page 748] sent their own voice. I come now to the remark of the hon. member, Mr. Playford, that they have no responsible government there.

Colonel SMITH: They have a revolution there every four years!

Sir JOHN DOWNER: That is no argument either way. If their government is a perfect government with out a responsible ministry, so much the worse for the responsible ministry argument, because it shows that a responsible government may well exist without a responsible ministry. To follow the argument of the hon. member, Mr. Playford, to its legitimate end, there should be no second house at all. The argument of the hon. gentleman is, "You cannot have a responsible ministry if you have two houses with equal authority." I contend that the argument of the hon. gentleman is no argument at all, because the question is not whether we are to have a responsible ministry, but whether or not we are to form a government which shall preserve the entities of the states, and yet, at the same time, bring about federation on proper terms in respect of matters which the states choose to hand over to them. Supposing responsible government will not coexist with this it is a matter which I in no way care about. What I am certain of is that if this be a good thing the government will be equally good, and will adjust itself to the exigencies of its circumstances. But, as a matter of fact, in

some countries of Europe two co-ordinate chambers exist, and yet responsible government exists. The government always must be responsible; the only question is as to whom the government is responsible. The government, says the hon. member, Sir John Bray, must be responsible to the people. Whom does he mean by the people? He means the people represented in the popular house.

Sir JOHN BRAY: Not necessarily!

Sir JOHN DOWNER: He means the people in the popular house, either as it exists at the time when some question arises, or as it exists after a general election. The hon. gentleman means that; and what he is endeavouring to do in connection with this attempt which we are making, not at all to give up our own local government, not at all to sacrifice the liberties of our colonies which have worked so excellently for all of us-at the very time that be asserts that there will be no federation unless we very carefully safeguard the liberties which we as colonies individually possess, he, in almost every matter of vital moment, proposes to hand over each colony to a general body in which, so far as the smaller colonies are concerned, they will have no practical representation at all; and whilst he wants to preserve the figment of a body which will seem to treat the states as states, and give them equal representation, he wants to absolutely take away the substance which we are seeking for, and to divest the senate of all substantial authority. I say now, as I said at an early stage of-our debates, that if one house can make and unmake governments alone, that house will, as a necessary corollary, absolutely rule the country. That body which governs the executive must necessarily govern that which the executive have to execute.

Mr. GILLIES: This amendment does not touch that question!

Sir JOHN DOWNER: This amendment deals with the whole question, or is intended to do so. Of course, it all depends whether these money bills are of any importance at all. If the money bills have the importance in legislation which the hon. member, Mr. Gillies, attributes to them; if legislation is finance and finance is legislation, which I do not believe; if this matter is of such supereminent importance, that it will be absolutely impossible to legislate without [start page 749] taking very great care about it; if these views are true, then I say it is absolutely absurd that we can preserve the rights of every colony at the same time that we hand over to the general population of Australia the whole government. If, on the other hand, it means very little, if other questions in which their rights are preserved are of so much more importance, why make so much fuss about the matter? I care not which way you take it. If money is everything, and everything is money, then the senate ought to have as great a voice as any other body. If it is a matter of secondary importance, then why do the larger colonies make so much trouble about it?

Colonel SMITH: It is not the larger but the smaller colonies that make all the trouble!

Sir JOHN DOWNER: Of course, they are making all the trouble. They are taking the trouble which the humblest of us would take to preserve. that which is his own, and to resist the aggression of an invader.

Mr. MUNRO: You are the invaders. You want to take away our privileges!

Sir JOHN DOWNER: We wish to take away no privileges whatever. On the contrary, we say we are going into rather a speculative venture-

Mr. MUNRO: And you want to get the plunder from us!

Sir JOHN DOWNER: It is unworthy of the hon. gentleman to say that. We are all anxious to enter upon a new venture. The only question is as to the terms on which we should initiate the agreement, and with regard to that we have two instances which have not worked well and only one instance which has worked well, and all the arguments about the government of the majority by the minority, and about the larger states being made subordinate to the smaller, and the more exagerated

language which demeans itself to such a word as "plunder"-all these arguments, I say, are dragged in when the light of experience shows that no such result follows. I agree with Sir John Bray that in the end the people must rule.

Mr. GILLIES: Who are the people?

Sir JOHN DOWNER: Why, the senate and the house of representatives. The hon. member, Mr. Kingston, holds the view that had the senate been elected in the way he desired, it should have co-equal authority with the other branch of the legislature; but because the majority here have come to the conclusion that it will be better to have some different mode of election by the people in the first instance from the ordinary mode of election, my hon. friend says that he would rather see the powers of the senate curtailed than extended, and that no great authority should be given to persons so elected. In putting forward that argument, the hon. gentleman has given us proof of the strength of his own views, which, when worked out, come to this: that rather than take care that his colony and other colonies should have an adequate representation in the senate and an adequate voice in national concerns, unless the senate is constituted in the precise method of which he approves he would rather sacrifice the liberty of his colony than forego his own individual views. Whether the senate is elected by the local legislatures or by the people, whom do the members from a particular state in that body represent?

Mr. KINGSTON: It depends upon how they are elected!

Sir JOHN DOWNER: They represent their own colony, and they are a power in their own colony.

Mr. DEAKIN: They represent classes-that is all!

Mr. KINGSTON: The class that return them!

Sir JOHN DOWNER: They represent all classes, whereas the hon. member, Mr. Kingston, only wants one class represented.

[start page 750] Every, portion of the community is thoroughly represented.

Colonel SMITH: They, only represent the money bags!

Sir JOHN DOWNER: Even as far as the election of the senate is concerned the local legislative assembly would have much larger power than the legislative council. Who can question that? And how can anybody say that a body so elected will represent the classes, and not the community generally?

Mr. KINGSTON: What was our experience in South Australia last year in regard to the Federal Council Bill?

Sir JOHN DOWNER: I am not talking about the Federal Council, which I always held in high estimation.

Mr. KINGSTON: Did not the Legislative Council wreck that last year?

Sir JOHN DOWNER: As a matter of fact the Legislative Council never cared very much for the Federal Council at any time.

Mr. KINGSTON: They wrecked it last year on class representation!

Mr. PLAYFORD: They wanted the propertied classes to have as much voice as the masses of the people!

Sir JOHN DOWNER: If that matter wants adjustment, let it be adjusted; but do not let a man who comes from any particular colony say that because the election of the senators is not in the precise mode that he would like, he will sacrifice the rights of his colony in regard to representation rather than not carry out his own views.

Mr. KINGSTON: I did not say anything of the sort!

Sir JOHN DOWNER: I have taken the same position in this matter ever since the question was first initiated. I can understand no federation that would bring success or be lasting-and in this I am sure Sir Henry Parkes will agree with me-unless founded on what is just and right; and I cannot understand anything being founded on justice and righteousness which will put the minor colonies in the position of being liable to be entirely overwhelmed by the larger populations of certain colonies.

HON. MEMBERS: Question! Question!

Sir GEORGE GREY: Hon. gentlemen seem to be very anxious to prevent the voices of members being heard. I think the whole of this debate has been a great mistake. Hon. gentlemen have been talking of preserving the liberties of the people, the liberties of the house of representatives, the liberties of the senate. They have been talking of imaginary things. There are no liberties at all. Let us follow out the question. How is the house of representatives to be created? By fair voting? No voice can answer yes. All know in their hearts that no fair voting is to be allowed. What of the plural voting? I am told that in one colony of Australia so far does plural voting go that it is exercised by paper votes being sent; that is, one man, if there were twenty-five electorates, would have twenty-five votes. He would vote in as many districts as he could personally, and vote by proxy in the others. Is that fair voting?

Mr. MACDONALD-PATERSON: There is no voting by proxy!

Mr. PLAYFORD: That is not the question!

Sir GEORGE GREY: I believe it is the case in Western Australia.

Mr. MUNRO: Unhappy Western Australia!

Sir GEORGE GREY: Unhappy Western Australia, yes; but, in truth, unhappy Australia altogether under that system. I say that the house of representatives would in no way represent the people, but would represent simply the landowners of the colonies. That is the usual way, except in South Australia and in New Zealand. If New Zealand becomes a member of the confederacy, except in those two places any- [start page 751] thing like fair voting would be absolutely unknown, and the house of representatives would not represent the people but would represent capital. The state legislatures are not allowed to represent the people, but are forced by the present laws to represent capital, and, that being so, hon. members say that the state legislatures shall elect the senate-that is, a constituency unfairly and unjustly created is to return the senate-and then hon. members debate as if it were a matter of the greatest consequence to the liberties of the people of this country whether the senate or the house of representatives shall have the greater power. What care we for their power? It is the power of capital alone, and squabbles between two parties of capitalists little interest the people at large. That is how the question stands. I say, therefore, that the debate is really useless, and what will follow from this? I fear that what will follow is that, when the question comes of this constitution being accepted by the people, it will be said that it is the state legislatures who are to vote as to whether it shall or shall not be accepted-that is, that upon that great all-absorbing question the people of Australasia and New Zealand shall have no power to determine what their fate is to be.

Mr. MUNRO: We will take care of that!

Sir GEORGE GREY: How can it be taken care of?

Mr. MUNRO: We will send it to them!

Sir GEORGE GREY: But, then, how will the people vote?

Mr. PLAYFORD: Yea or nay!

Sir GEORGE GREY: How will the people vote with plural votes against them? You refused to let them have the power of voting man by man.

Mr. MUNRO: I voted with the hon. member!

Sir GEORGE GREY: Yes, the hon. gentleman did; but I am speaking of the House. I was grateful to the hon. member for the vote that he gave, and I believe that his name will stand high in Australia for having given it. We may be few in number; but the time will come when it will be thought the more honorable that we, as few in number, should have fought this great question, and at last brought it to a successful issue; for if fair voting is not given to the people, I feel certain that from one end of Australia to the other the people will resolve upon petitions to the parliament in England, and expose the true state of things, and be saved from a constitution being imposed on them which is merely a sham constitution, as is the proposed constitution that we are calling into existence. It is not worth our while further to debate this subject, and I shall say no more upon it; but I simply reaffirm absolutely-and I know that I am speaking the truth, which cannot fairly be contradicted-that under this constitution there is no fair voting whatever allowed to the people of Australia, in any part of it, and that the only persons who do exercise it are those who have obtained it in former days, by struggles in some cases protracted through years, and that if this constitution is imposed upon them it will ultimately lead to such contests amongst the people themselves that I feel certain that disorder, distress, and discomfort will exist yet for many years in Australia, which would be totally avoided if this Convention would at once do that justice to their fellow-citizens to which they are entitled. When we are told, as I heard an hon. gentleman say just now, that we are taking an example from America as to what we should do about the senate, I say that that has no relation whatever to us, because in America there is the system of every man having one vote. Their institutions are based upon that, and if ours is based on this system of plural voting, in which one man may exercise, perhaps, more than twenty votes against one of his [start page 752] fellow-citizen's, then I say there is no justice in this country, that it matters not to us what the constitution is, that we are simply governed by a few persons, who will naturally look to their own interests. My hon. friend opposite said it absolutely was, and should be, kept a government of the people, for the people, and by the people; but I say that it is not a government of the people, it is not for the people, and it is not by the people. In not one of those respects does such a government exist here, and in not one of those respects will a government exist which is established under the absolute resolutions which we have adopted in the act which we are about to try and force on the country. I think we might drop all consultation on the subject. To us it is indifferent whether it is the senate that has this power, or whether it is the house of representatives that has the power. The one thing that we have to do with is that the people of Australasia have not the power, and yet they are the persons in whose hands it should exist.

Mr. DIBBS: When the debate on the main question took place in the early days of this Convention, had a vote been taken I think the question would have been decided in favour of the principle laid down in the amendment of the hon. member, Mr. Baker, in the proportion of something like 10 to 3. One naturally asks, what has the Convention done; what mysterious influence has been at work in the star chamber of the select committee to cause thirty men to come round to the views of ten. When we first started, this question would have been so settled as to create a senate that would have been worthy of the federation. The hon. member, Sir Henry Parkes, who held certain views before the sub-committee was appointed, seems to have talked the select committee round to what the

hon. member, Mr. McMillan, calls a wretched compromise. It is an absolute compromise, as wretched as wretched can be, for it is laying the axe to the root of an independent senate upon which, as in the case of America, the people, the democracy, would look with confidence, and upon which they would rely for the good of the country. So far there has been no speech which answered that made since lunch by the hon. member, Sir John Downer, who, I think, put the matter very clearly. As he says, there is the experience of America for more than 100 years, with a powerful senate, and democratic America to-day believes in the senate as therein constituted. What we are asked to do by this clause, as it is printed in the bill, is not to follow the lines of the British Constitution; but the framers of the bill, and those who sat in the subcommittee upon it, have followed the lines of the American Constitution. When it is proposed to give the senate the power of the American Senate, hon. members go back to the worn-out theory of the British Constitution as regards the House of Lords, or any nominee chamber. I for a long time have believed in the existence of a nominee upper house. To-day I do not. To-day I believe in an elective upper house, and looking at our Colony-for that one's own colony is the place where we get the most experience-and seeing the, appointments made from time to time by ministers in power of men utterly unfit to be senators or legislators, I think the time has arrived when that power should be taken out of the hands of ministers, and in some form left in the hands of the people. From what is proposed here one would imagine that the people would have no voice in the election of the senate. The people will elect their representatives, and the house of representatives will elect the members of the senate. Surely that is election through the people by the mouths of their representatives, who are responsible to their constituents for their election to the senate. I do not know a more re- [start page 753] fined process by which you could make a more perfect, and independent, and probably intelligent senate than that. It is for that reason that I hold the senate to be of any power at all must be framed on the direct lines of the American Senate, and have coequal powers with the house of representatives. All the arguments which can be used in regard to responsible government and the house of representatives have been fairly stated by the hon. member, Sir John Downer, and I have heard nothing yet in reply to them. The house of representatives will decide the fate of a ministry, and, after all, there will be responsible government by the action of the house of representatives. Now we know perfectly well that the feeling has arisen in England, and that even some of the most distinguished statesmen in England are endeavouring to reform the constitution of the House of Lords, and I hope they may succeed. We know perfectly well that there has been no attempt on the part of the democracy of America to lessen the influence or power of the senate; but that as time rolls by, with the experience of 100 years, the senate still holds the affections of the people. Why, we should attempt-and I borrow the words from my hon. friend, Mr. McMillan, again-to degrade the senate of federal Australia is a matter beyond my conception. That is the second point where I cannot realise my position. I was led away by the speech of the hon. member, Sir Samuel Griffith, and those who spoke with him on the main debate. My mind was then made perfectly clear that when the time arrived for me to record my vote it would be in favour of creating a powerful senate. But what is the mysterious influence that has been at work with hon. members that thirty should bow the knee to ten? I should like to hear the history of that secret conclave, that select committee, where thirty men gave way to ten. Who has jibbed on the business? Who has turned traitor on the principles which they advocated here in eloquent speeches, and which misled young men like myself to permit my mind to believe that a strong senate was good for the country? But now we have this maudlin proposition put forward for the senate to make suggestions to the house of representatives. We know perfectly well in nine cases out of ten in what manner the suggestions would be received. Our great desire for the future good of this country should be to create a powerful senate. Remember we have no property qualification for the senate. The qualification in the bill for a senator is that he shall have reached a certain advanced age, and shall have resided a certain time in the country. Beyond that, money or capital is in no way represented in the senate, and the humblest man who may be fit for the position may be elected through one of the various state legislatures to the highest position in the land-to the senate. As you have made the qualification so slight for the position of senator, there are men in the democratic classes who will aspire, and who will undoubtedly reach, by reason of their talents and character, the highest position which the country can confer on any citizen-a senatorship. Why should we ask the senate to be a mere recording house; why should we give the senate absolutely less power than a nominee house-less power than the nominee house of New South Wales possesses to-day, and less than other nominee houses possess? We know that from

time to time-and we shall hear of it when our Parliament meets-some very curious appointments are made, even in our own colony within the last few weeks-appointments which clearly convince those who have given the slightest thought to the question that a nominee house is not good for the interests of either the states or the federal parliament.

[start page 754] Mr. PLAYFORD: That is nothing to do with us!

Mr. MUNRO: They will take a part in the election!

Mr. DIBBS: They will; but you have your senate elected by the states, and give them co-equal power, as I would, then you would find that in the states, where the nominee chamber exists, and where it has been used so disgracefully as it has been in times past, if not lately, the people would insist upon changing the state constitution and introducing the elective principle. For my part, I am beginning seriously to change my mind upon the old nominee system, and I am coming gradually round, and with very good reason, to believe that an elective upper chamber is necessary for the states, even if we adopt the proposal in this bill, even if the hon. member, Mr. Baker's amendment be carried, of having the members of the senate elected by the various states through the state parliament. Now, what we are trying to provide for is how to get over the possibility of a deadlock, constituted as the senate will be. An idea has got into the minds of hon. members that the smaller states will rule the larger, or that the larger will rule the smaller. A way to get over the difficulty is to adopt to a large extent the Norwegian system, which, in its working, prevents the possibility of a deadlock in the carrying out of the functions of the two houses. Under the Norwegian system, as hon. members know, in the event of a deadlock occurring and a bill being sent back from the house of representatives to the senate, and refusing to acknowledge the senate's amendments, both houses meet as one house and the question is there thrashed out and settled on one vote. If that system be adopted without any referendum to the people, or without anything of the kind, the whole question of a deadlock falls to the ground. That is the form of parliament which it appears to me hon. members are trying to bring about.

Mr. PLAYFORD: That settles the senate straight!

Mr. DIBBS: Never mind if it did. It would bring a finality to the question, for, after all, we must assume that the members of the senate will be as intelligent as the members of the house of representatives. If we were proposing to put the inmates of the various lunatic asylums in the senate, then you might wish to create the senate in the way you are seeking to do under the bill. But if we wish to fill the senate with the nominees of some corrupt government, then fence their powers round in every possible form in order to safeguard the liberties of the people. But where the senate is elected from the house of representatives, which may be just fresh from the hustings, and where the house of representatives is responsible to the constituencies, I say that by the adoption of that refined process you will have a chance of getting a more intelligent, and better educated, and a senate of such a character as may with safety be trusted with coequal powers with the lower house, provided that there is, however, some mode such as is contained in the Norwegian Constitution of settling a deadlock which may occasionally occur by one united vote. For my part, I shall give my vote in favour of the amendment of the hon. member, Mr. Baker. I shall then give my vote in favour of the principle to which a majority agreed three weeks ago. I shall give my vote in the direction in which my mind was influenced by the speeches which I heard three weeks ago, for nothing has been said since the committee reported to the Convention to change my mind or the minds of hon. members. If the hon. member, Mr. Baker, fails in carrying his amendment, then the next best course open is the proposal of my hon, friend, Mr. McMillan, which we shall have to take as a sort of [start page 755] via media between the extreme view of the hon. member, Mr. Baker, and the constitution as proposed in the bill. But at the present time I shall give my vote to make the senate worthy of what Australia shall become, not a degraded institution, not a senate whose members may be the most inferior, instead of the best men the country can produce, but a body of men whose weight, whose experience, and whose

intelligence will be felt throughout the country; a senate which, as in the case of America, will command the full confidence and respect of the people.

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

The Committee divided:

Ayes, 22; noes, 16; majority, 6.


Bird, Mr. Kingston, Mr.

Bray, Sir John Macdonald-Paterson, Mr.

Clark, Mr. McIlwraith, Sir Thomas

Cuthbert, Mr. McMillan, Mr.

Deakin, Mr. Munro, Mr.

Fitzgerald, Mr. Parkes, Sir Henry

Fysh, Mr. Playford, Mr.

Gillies, Mr. Rutledge, Mr.

Griffith, Sir Samuel Smith, Colonel

Hackett, Mr. Suttor, Mr.

Jennings, Sir Patrick Wrixon, Mr.


Baker, Mr. Forrest, Mr. J.

Burgess, Mr. Gordon, Mr.

Cockburn, Dr. Grey, Sir George

Dibbs, Mr. Loton, Mr.

Donaldson, Mr. Marmion, Mr.

Douglas, Mr. Adye Moore, Mr.

Downer, Sir John Russell, Captain

Forrest, Mr. A. Thynne, Mr.

Question so resolved in the affirmative. Amendment negatived.

Mr. MCMILLAN: I shall say very little in placing my amendment before the Committee. I propose to retain sub-clause 1 down to the word "government." It will be necessary to propose the

amendment in a certain way, because I do not want the excision of sub-clause 4. I shall propose an amendment to follow on after the word "government," and then, if my amendment be carried, I shall propose the excision of sub-clauses 2 and 3, allowing sub-clause 4 to stand, and moving afterwards the excision of sub-clause 5. The clause, as amended, would read as follows:-

(1.) The senate shall have equal power with the house of representatives in respect of all proposed laws, except laws imposing taxation and laws appropriating the necessary supplies for the ordinary annual services of the government.

(2.) In respect of laws appropriating the necessary supplies for the ordinary annual services of the government, the senate shall have the power to affirm or reject, but not to amend.

(3.) In respect of laws imposing taxation, the senate shall have the power to amend; but if any proposed law imposing taxation is amended by the senate, and is afterwards returned to the senate by the house of representatives, the senate shall not have the power to send the proposed law again to the house of representatives with any amendment in it to which the house of representatives has not agreed, but shall either affirm or reject it.

The only matters to which I intend to refer in putting this amendment before the house are: first, the question with regard to the bearing of the senate on state rights; and, secondly, its bearing with regard to responsible government. Now, as far as the question of state rights is concerned, I do not argue that the upper chamber is absolutely and essentially intended to conserve those rights. If I have any feeling at all in the matter, I think that, personally, I tend more towards the principle of unification than of federation, and the action I take now I would take if we were assembled here to declare the unification of Australia under one political government. I stand up for the rights and liberties of the upper chamber, which, I believe, would be a solid bulwark of the liberties of the people of this country, and when that chamber is elected, if not directly, at any rate indirectly, by the people-that is, elected by those who are directly elected by the people-I hold that an analogy [start page 756] sought to be drawn between that chamber and the House of Lords or a nominee chamber is utterly out of place. Furthermore, with regard to responsible government, I do not hold that the question of responsible government is touched at all in this matter. It has been said here that the most important matters coming under the view of a legislature are not connected with finance at all; and we know that most of the questions upon which governments, stand or fall have nothing whatever to do with finance. If the upper house has the power not only to veto but to amend bills involving great questions of public policy, affecting the whole social interest of the people-surely if constitutional and responsible government can exist under such a state of affairs in regard to these subjects, it is absurd to fear that constitutional and responsible government are going by the board because we allow the upper house the power of amendment. I simply reiterate these views in order-as I am taking upon myself a heavy responsibility-that I may be free from misapprehension. I do not consider the question of an appropriation bill is at all analogous to a bill creating a new policy. The appropriation bill simply covers the expenditure based upon a policy previously agreed to, and upon which the upper house, according to my amendment, would have a perfect right to record its decision by way of amendment. I believe that this is a fair and reasonable compromise. I believe it is an improvement on the mode suggested for exactly the same purpose, and to bring about the same results, by hon. gentlemen of the Constitutional Committee, and it is with the full confidence that it will be accepted as a compromise that I now submit it to the Convention. I move:

That the words "which the senate may affirm or reject, but may not amend. But the senate may not amend any proposed law in such a manner as to increase any proposed charge or burden on the people," be omitted.

Sir SAMUEL GRIFFITH: My hon. friend, Mr. McMillan, is quite right when be says that he assumes a very serious responsibility in proposing this amendment, because this subject after several days' debate in the Convention, received the anxious attention of the committee for several days and from every point of view; and they did not adopt this form of words without carefully choosing every

word, and considering how the proposed scheme would work out in practice. I shall be able to show in a very few minutes that whatever merits there may be in this amendment of the hon. member's, he has not only not given it half the consideration which the committee gave their proposal; but, also that, while I believe he brings it forward with a view to strengthening the power of the senate, he is distinctly weakening the power of that body, and taking away the most beneficial powers proposed to be given to it under the suggested compromise. I will deal, first of all, with the case of appropriation bills. The hon. member does not propose to leave out the 4th paragraph of the clause, which provides:

The expenditure for services other than the ordinary annual services of the government shall not be authorised by the same law as that which appropriates the supplies for such ordinary annual services, but shall be authorised by a separate law or laws.

Supposing the senate were of opinion that there was a violation of that provision, that there was something in an ordinary appropriation bill violating that rule, and which, no doubt, the house of representatives would take out if its attention were called to it by the senate. The amendment of the hon. member would prevent the senate from doing so. In fact, while the 2nd, 3rd, and 4th paragraphs of this clause carefully guard against tacking, the hon. member would actually facilitate tacking, while at the same time he shuts the mouth of the senate, compelling them either to [start page 757] swallow the whole bill or to throw the public service into confusion by rejecting it? Does the hon. member mean to do that? Surely he has not thought out the subject or he would have drawn up the amendment in a better form. These objections with regard to appropriation bills occur to me at the moment. On the other hand the hon. member proposes to give the senate the power of increasing taxation, which was not proposed before. Then there is this extraordinary proposal: Instead of the senate making a request that an item in a bill which they regard as objectionable should be omitted, which request would be considered by the house of representatives, no doubt in conference with the senate, so that they might come to an amicable conclusion, the hon. member absolutely prohibits a conference. He says that if once an alteration is made in a taxation bill it must be made in the form of an amendment, when it is to go direct to the house of representatives, and unless they instantly adopt it the thing is at an end.

Mr. MCMILLAN: My amendment does not provide necessarily that there shall not be a conference!

Sir SAMUEL GRIFFITH: Yes; because if the house of representatives say they will not agree to the amendment there is an end of it. All the facilities that are offered by this compromise, which was carefully thought out, for allowing the two houses to come to an understanding, are swept away. They are at once to be placed at arm's length. The senate is really to have no alternative but to reject the whole measure, or accept items which they consider objectionable, and which the other house might be willing to omit.

Mr. MCMILLAN: The clause, as it stands, does not provide for a conference any more than my amendment does!

Sir SAMUEL GRIFFITH: The amendment prohibits a conference, because, if once an amendment goes back to the house of representatives, there is no chance offered for a conference.

Mr. MCMILLAN: Nothing of the kind!

Sir SAMUEL GRIFFITH: That may not be what the hon. member means, because the proposal is so preposterous that I do not believe that the hon. member would deliberately make it. I am, however, criticising the amendment as it is placed before hon. members. As soon as an amendment is made-and it must take that form-it is sent back to the house of representatives, and if it is not acceptable to the house of representatives, all compromise is at an end, except by dropping the bill. Surely that is not an improvement on the proposal contained in the bill. I entreat hon. members in considering this subject to bear in mind what was pointed out by the President at the beginning of the

Convention. We shall never arrive at a satisfactory conclusion, unless we meet in a spirit of compromise. Some hon. members seem to have disregarded that spirit altogether. I do not think the clause in the bill is by any means in the best possible form, but I believe it is in the best attainable form, which is a different thing It may be that being in the best attainable form, it is really in its best form, because we are here to do the best we can for Australia, and if this is the best thing that can be done with a chance of securing the assent of the people of Australia, we ought to adopt it, although our own individual opinions would have led us to cast the clause in a different form. I hope sincerely that hon. members will regard the question from that point of view, and that the hon. member, Mr. McMillan, will not press his amendment.

Mr. FITZGERALD: I think that it was incumbent upon the hon. member, Mr. McMillan, to explain in what way this amendment of his could be more in accordance with the dignity of the senate, [start page 758] and, therefore, more in accordance with the immediate object be had in view, than the clause he wishes to expunge. Judging from a long experience in the upper branch of a parliament in not one of the smallest of the colonies, it appears to me that if the upper house had the power to amend in the first place, and return the bill with an amendment to the house of representatives, the house of representatives fully knowing that if they refused to accept the amendment, and sent the measure back to the senate, they could force the senate to reject or to accept the measure, the house of representatives would regard it as tantamount to an invitation not to consider any amendments made by the senate, so placing the senate in the position in which they would have been if they had had no power to alter the measure in the first instance. I do not see how it enhances the dignity of any branch of the parliament to give it power to amend a bill, while at the same time you place it in the power of the other branch of the legislature to send back a measure to the senate a second time, and force that branch to say "aye" or "no" without the power of amendment. I say that, in the spirit of compromise, which is the raison d'etre of this Convention, it is far more dignified and more in accordance with the value which the upper chamber should have in the legislature of the proposed commonwealth, that the senate should not make an amendment in measure, but should signify their desire to meet in a friendly spirit with the house of representatives. If they could give a manifestation of their desire as to the direction in which an amendment should be made, surely that would place them in a more dignified position than to do as the hon. member, Mr. McMillan, proposes. I think the hon. member has entirely mistaken the effect his amendment would have. It would tend to lower the dignity of the senate, it would be practically suggestive of altercations between the two houses, and it is at variance with the spirit which has led so many of us to yield our sincerely held opinions as to the importance of giving the senate power over all legislation. I do not think that this Convention, after affirming that principle in a spirit of compromise, will be led away from that spirit and adopt a course which, instead of increasing, would lower the dignity of the senate, which would be suggestive of altercation and dispute, and would invariably, in case of a dispute, lead to the senate taking a lower place in the respect, not only of the world, but of the people of these colonies.

Mr. PLAYFORD: It is astonishing to me that a gentleman should get up and say that he is fighting for the rights and privileges of the senate, and at the same time propose to take away the rights and privileges which we in committee agreed that they should exercise. The principle of tacking, of including in one bill two separate subjects, will be allowed if the amendment is adopted. The hon. member proposes to strike out paragraphs 2 and 3, which distinctly prevent the tacking on to a taxation bill of any other subject than the one subject of taxation. It prevents two subjects of taxation from being mixed up together, so as to give the senate power to throw out any bill without interfering with any other subject whatever. The hon. member, Mr. McMillan, appears to have altogether misunderstood the position. I have no doubt he believed that in proposing his amendment he was conserving the rights of the senate, but he is not conserving the rights of the senate in any sense; and so far as the matter of form is concerned, the difference between sending down amendments from the senate, and sending suggestions is the difference between tweedledum and tweedledee. The practical result will be [start page 759] the same whether amendments or suggestions are sent from the senate to the house of representatives. The hon. member proposes that the amendments shall not be dealt with by the senate in the ordinary way; but if the house of representatives disagree with the

amendments made by the senate in the bill, then there shall be no option for the senate but to accept or reject the bill in in toto. If we make a difference in substance, why not have a different form to mark that difference in substance? It would be a great deal better to say to the senate: "Send down your suggestions, and we will agree with them or disagree with them," than to say, "Send them down in the form of amendments," because in dealing with them in the form of amendments you alter the substance of the amendment altogether, and insist that they shall deal with the question in a totally different manner. I would ask the Committee to agree to the clause as it stands. It was most carefully considered by the members of the Constitution Committee. Time after time the question came up, and it was considered from the standpoint of conserving the rights and privileges and giving as much power as we consistently could to the senate. I contend that the amendment will have precisely the opposite effect.

Mr. THYNNE: As a member of the Constitution Committee, I did not approve of this clause as proposed, because I believe that the senate should have coequal powers in all these matters with the house of representatives; but that principle has not been adopted by the Convention. I will, therefore, support the clause which has been brought up by the Constitution Committee as being, as I think, the next best provision that can be made.

Amendment negatived.

Mr. WRIXON: I wish to ask the attention of the Committee for a moment whilst I propose a new sub-clause to stand as sub-clause 6. I will not detain the Convention long, but hon. members will see the position in which the question now is. We have arranged to give the senate the right to send down proposed amendments to the house of representatives. Those amendments the house of representatives may or may not accept as they think proper. This proposed power extends to the appropriation bill as well as to every other bill, and I am afraid that in working it will be found to be productive of confusion and conflict. I am convinced that a similar power, if exercised with regard to the appropriation bill in any of our provinces, would lead to such confusion that the government could not be carried on unless you had some means of securing finality, and I am afraid that in passing this now and postponing any means of settling a difference if it arises-a difference on such a critical measure as an appropriation bill-we are only postponing the difficulty from this Convention to the future dominion parliament. We are not agreed as to how it will work; as to whether the house of representatives will be compelled under moral pressure to accept the suggestions of the senate, or whether the house of representatives would be just as free as any lower house now is to disregard any proposal made by the upper house to interfere with its appropriation act. Some think the clause will give the senate some new powers; others think it will not. Whatever we think, we leave the matter entirely without any provision for settling the difficulty when it arises. It may be asked, why settle things? The reason is because you provide new machinery; you recognise the right of the senate to scrutinise the appropriation bill, and in giving that right you inferentially make it their duty to scrutinise the items in that bill, and not to pass the bill if it contains items of which they disapprove. I feel that there will be that difficulty; and there is no [start page 760] means of settling it if it arises. I will, therefore, propose the new sub-clause as it is printed, with one or two amendments which the hon. and learned member, Sir Samuel Griffith, has suggested. I move:

That the following stand as sub-clause (6):-"If the house of representatives decline to make any such omission or amendment, the senate may request a joint meeting of the members of the two houses, which shall thereupon be held, and the question shall be determined by a majority of the members present at such meeting."

Under that there can be no deadlocks; finality is reached; the machine will work. If you have no such arrangement, I do not know how you will deal with the ordinary finances of the year. If there is any considerable division in the house of representatives, the senate, in voting with them, would be able to carry their point. On the other hand, if the senate is pretty unanimous, and the house of representatives is divided, then the senate by joining the minority in the house of representatives would have its way. I admit that if a large proportion of the members of the house of representatives

were determined on any view, they would be able to carry their view, and I think it is only reasonable that it should be so. I do not think there should be anything to enable the wish of the majority of the people, as expressed in the house of representatives, to be over-riden. I submit my amendment for the consideration of the Convention, as I think it desirable that we should not overlook a difficulty, which certainly will arise hereafter.

Sir SAMUEL GRIFFITH: I would ask the hon. member, Mr. Wrixon, if he has considered the matter from this point of view?-The senate need not ask for a joint meeting unless it likes, and it would not ask for it unless it counted heads and saw that it would have a majority; so that by his proposal the senate would be able to coerce the house of representatives.

Mr. WRIXON: And rightly so whenever they had a majority, but whenever they had not a majority, of course, they would not!

Sir SAMUEL GRIFFITH: Whenever they had an opportunity they would enforce their views as against the house of representatives.

Mr. FITZGERALD: Take the other view!

Sir SAMUEL GRIFFITH: Then I do not think that the senate would call a meeting.

Mr. DONALDSON: They would be taunted for not doing so!

Mr. FITZGERALD: Take the other view, that the house of representatives would not agree to the meeting if they thought they had a majority!

Sir SAMUEL GRIFFITH: From every point of view I think the amendment is a dangerous one, and I confess that I have no love for those artificial means of settling differences between the two houses.

Mr. FITZGERALD: It appears to me that if the senate had this power it would close the door to their having the power which we desire to give them, of sending down suggestions with regard to amendments which they wanted to see adopted. If the house of representatives were aware that the senate had still a reserve, they would say, "Oh, we will not have a meeting"-in other words, the action of the house of representatives would depend upon the number of heads which they could count in their favour, and the meeting would not be held. More over, has it not for many years been brought before the notice of members of parliament in these colonies that these mechanical means of settling disputes are worse than useless? If we already place reliance upon the spirit of moderation and justice, and the high, honorable feeling of the men who enter the parliaments of these colonies, and believe that they are governed by high [start page 761] motives, and not actuated by the desire for paltry victories over their opponents, how much more can we place reliance in the great parliament which we hope to create. Can we have the great national life which we all say we shall call into existence by federation without an enhanced sense of national honor? Must not the two go together; and, if we have both, cannot we rely upon the proper spirit and motives which will actuate the members of both houses, and believe that questions of difference will not lead to confusion, and that the members of the federal parliament will not be governed by the consideration of party or personal politics, but by the interests of the country at large? I hope that we shall trust the parliament, and not leave the provisions of the bill as they are.

Mr. DEAKIN: For my own part, I wish to enter my dissent from the views of the last speaker, and the hon. member, Sir Samuel Griffith. As I understand them, they are opposed to what they term a "mechanical" method of settling differences between the two houses. But unless we are to be frightened by a word, we should welcome every means that are just for settling the disputes which may arise between two bodies clothed with co-ordinate, or at least large powers, and charged with the highest duties. I should be in favour of any means shown to be just to the electors of the country of

settling disputes when they arise, and I think my hon. colleague is to be commended for having submitted this amendment to the Committee. Not that it appears sufficiently perfect in its details to encourage us in making any strong effort for its adoption, because, having already tested the feeling of the Constitutional Committee myself, I have discovered that, so far as it was a reflex of the Convention, it was opposed to the employment of any such means; but I am convinced that in the future the electors under this constitution will be compelled to take advantage of its provisions to amend it in such a way as to provide for the settlement of deadlocks when they arise.

Mr. MUNRO: They will never arise!

Mr. DEAKIN: I am convinced that what the hon. member, Mr. Wrixon, proposes for the joint settling of differences between the houses will be an excellent arrangement so soon as those houses are equally responsible to the electors. During this debate it was endeavoured to be argued that the upper house represented the masses and not the classes, to which the obvious reply is that the classes are represented in the house of representatives and then in the upper house, which is based on a limited franchise, they are given a second representation. The chief objection to my hon. friend's proposition is that it would increase the power of the class houses by means of this joint sitting. The justice and moderation to which the hon. member, Mr. Fitzgerald, alluded, are not always to be found in houses indirectly elected by the people. So, for the opposite reason to that which actuated my hon. friend, it appears to me that it is not desirable to accept this proposal at the present time. I rise, however, for the purpose of saying that the proposition of the hon. member, Mr. Wrixon, is an attempt to improve upon a clause which certainly needs great improvement. For my own part, I believe that the powers intrusted to the senate under this clause-the new powers-are of the largest and most serious character.

An HON. MEMBER: Too large!

Mr. DEAKIN: I believe that the day will come when the electors of this country will demand that the powers granted by this clause shall be considerably restricted. It may be, however, if the development of the country is to lead, as some hon. members suppose, to the election in each case of upper houses, which will be directly [start page 762] responsible to the people themselves, that the demand may take another direction. But certainly so long as the upper chambers are maintained on their present narrow basis, so long will the electors of the commonwealth of Australia object to the exceptional powers given to the senate by this clause. They will certainly lead to conflict, and I, for one, would be no party to setting my seal to these provisions which are forced upon us under existing circumstances were I not convinced that with a responsible government answerable only to one chamber, and that chamber responsible to the whole people, victory is assured to the popular party. But it will be victory after strife, and after strife that we shall regret.

Amendment negatived; clause, as read, agreed to.

Clause 56. It shall not be lawful for the house of representatives to pass any vote, resolution, or law for the appropriation of any part of the public revenue, or of the produce of any tax or impost, to any purpose that has not been first recommended to that house by message of the governor-general in the session in which the vote, resolution, or law, is proposed.

Sir JOHN BRAY: I would ask the hon. member, Sir Samuel Griffith, what is the difference between "any part of the public revenue" and "the produce of any tax or impost"? I should imagine that the produce of any tax or impost would become part of the public revenue, and I think that if these words are inserted they will give rise to a good deal of confusion by-and-by. It has been determined that the imposition of a fine or penalty is a tax, and supposing part of such a fine were to go to the informer, would the bill containing that provision have to be introduced by a message from the governor? I do not think we ought to require any message from the governor for any bill except an appropriation bill. Before moving any amendment, however, I would like to know from the hon.

member whether it is intended that these words shall mean anything more than the appropriation of the public revenue.

Sir SAMUEL GRIFFITH: The phrase is a familiar one in most of the constitutions.


Sir SAMUEL GRIFFITH: It occurs in all the constitutions that I have seen, and applies particularly to cases of which many occur in Queensland, and some occur no doubt in the other colonies, where a fund is raised under a particular law for a particular purpose. The money is not paid into the general revenue, but forms a special fund administered for the benefit of the people who raise it. Take, for instance, the stock assessment fund, or the brands fund, which are raised by contributions from owners of stock, and the money collected is appropriated entirely for their benefit. It would not be convenient to mix such matters up with the ordinary revenue.

Sir JOHN BRAY: I move:

That in line 4, the words "or of the produce of any tax or impost" be struck out.

It seems to me that if the object were to raise a stock-tax and appropriate it in a certain way, the measure dealing with it could very properly be introduced by a private member who had a knowledge of the subject. That would not in any way interfere with the appropriation of public revenue, or prevent the government from carrying on its ordinary duties of administration. If this clause stands as it is printed nobody but a member of the government could introduce a bill having such an object, because you must get a message from the governor, and a private member could not get one. It seems to me that the words are entirely unnecessary.

Mr. GILLIES: I am afraid the hon. member has not altogether thought out this clause. It may come to this: that a bill may be introduced into parliament [start page 763] which imposes a tax. If that tax is there and then proposed to be appropriated to some purpose it will, and it ought to, require a message.

Sir JOHN BRAY: Not unless it is part of the public revenue!

Mr. GILLIES: These are parts of the public revenue.

Sir JOHN BRAY: Then the words are not necessary!

Mr. GILLIES: I am pointing out to the hon. member that if, in the same bill, it is proposed to make an appropriation, it is usual to have a message from the governor. If an ordinary tax is proposed the money naturally goes into the public revenue; but if it is proposed to be appropriated to some other purpose a message will be required. I do not think there is any doubt about that. This is the same form as is used in the Constitution Act of New South Wales, which states:

It shall not be lawful for the Legislative Assembly to originate or pass any vote, resolution, or bill for the appropriation of any part of the said consolidated revenue fund, or of any other tax or impost, to any purpose which shall not have been recommended by a message.

Amendment negatived; clause agreed to.

Clause 57 (Royal assent to bills).

Mr. DIBBS: The second portion of this clause seems to me to be a novelty in responsible government. Is the governor-general to be the governor-general and executive? The latter portion of the clause seems to me to be perfectly useless.

Mr. MUNRO: Some verbal amendments may be required to be made in a bill!

Clause agreed to.

Clause 58. When the governor-general assents to a law in the Queen's name he shall by the first convenient opportunity send an authentic copy to the Queen, and if the Queen-in-Council within two years after receipt thereof thinks fit to disallow the law, such disallowance being made known by the governor-general, by speech or message, to each of the houses of the parliament, or by proclamation, shall annul the law from and after the day when the disallowance is so made known.

Dr. COCKBURN: I think the period of disallowance is larger than is necessary. It was all very well many years ago, when the communication with England was long and tedious; but now we have such rapid means of communication that I think two years is too long. I think it might very well be reduced by one-half or one-fourth. Six months or a year would be quite sufficient. There is nothing more vexatious than uncertainty in these matters. I think we should also lay down upon what subjects the power of veto is to be exercised. We shall all agree that in questions of domestic legislation-

Mr. GILLIES: We are not all agreed on the question of the establishment of a republic!

Dr. COCKBURN: There is no question of that. We want to establish such a commonwealth as will exist with the least strained relations with the mother country. Nothing gives rise to such vexation as a veto upon questions of domestic legislation. Take the case of Canada.

Mr. MUNRO: Two years is the period fixed under their Constitution!

Dr. COCKBURN: I know; but it was fixed many years ago. There is nothing more irritating than vetoing of domestic legislation. In the case of Canada, one of the first acts of the federal government was to reduce, by act of parliament, the salary of the governor-general from £10,000 to £6,500 a year, and this act, which was purely one of domestic legislation, was vetoed by the Imperial Government. I think the more we confine and define the limit of veto, the less risk there is of inharmonious relations with the mother country. I therefore move:

That the word "two," line 5, be emitted with a view to the insertion of the word "one."

[start page 764] I also intend to move:

That the following words be added to the clause:-"Provided such disallowance shall be exercised on such subjects only as affect imperial interests, and are specified in schedule B."

Sir GEORGE GREY: The Committee have received this proposal rather with ridicule. Members are probably not aware that this formed part of the laws of New Zealand for many years, and worked admirably, and was approved of at home. It saved a great deal of trouble, and was really a very great privilege, and, in point of fact, the clause which enacted this was repealed, as I may say accidentally, that is, an amending law was passed in which no provision was made for the continuance of the system. I am certain it was an entire oversight. It was generally admitted in Great Britain, that by narrowing the number of acts sent to the Crown we very much reduced the probability of any dispute taking place between the Crown and the colony. The arrangement was made in this way: The law did not state the number of subjects upon which acts need be sent home; but it stated the actual subjects upon which laws made must be transmitted for the Queen's allowance or disallowance. The system worked admirably, and never presented the slightest inconvenience, and was thought a wise provision; and I cannot myself see any objection to its insertion here. I think it would be best, perhaps, to postpone the subject, and to have a clause carefully drawn, which would make members more clearly and fully understand how much advantage was gained in point of clerical work, independent of delay

of time, and independent of any possible rupture between Great Britain and the colony on the subject of the allowance or disallowance of laws.

Sir SAMUEL GRIFFITH: I think, so long as the Queen is an integral part of the parliament, it certainly follows that, theoretically, she has the power of disagreeing with a proposed law; otherwise we merely make two branches of the legislature for dealing with those laws. With respect to the time, the period of two years was probably fixed a long time ago, and the question arises, are two years too long? The object is, of course, to allow full communication between her Majesty's Government in England and her Majesty's Government in Australia, before the extreme power of disallowance is exercised. The term may not be too long. I remember the case of a law passed by the Federal Council just two years ago affecting the fisheries in Western Australia. It was very much objected to by the people there. It is only in respect to cases of that kind-the fisheries at Western Australia, North-western Australia, and Torres Straits-that there is likely to be any trouble. The people specially concerned are entitled to be heard. When their views have been placed before her Majesty's Government in England the imperial authorities will want to know the views of the Australian government; and it does not follow that the first communication on either side will say all that is to be said on the subject; and if you insist upon the time being limited to one year, you may be insisting upon a very important thing being done hurriedly. In the particular case to which I refer the question was finally decided by telegram.

Mr. GILLIES: If you do not give them time, the chances are that they will disallow!

Sir SAMUEL GRIFFITH: Yes. In the case referred to the time allowed was twelve months, and the communications were carried on hurriedly. The twelve months were on the point of expiring, and the measure had to be disallowed or assented to. In that case the time was found to be too short in which to do the work satisfactorily. That was a comparatively small matter, but the matters in respect to which any question would be likely to [start page 765] arise under this constitution would be of much greater importance. I would suggest that the words should be allowed to stand.

Mr. MARMION: The hon. member, Dr. Cockburn, said that in questions of domestic legislation it was not advisable that the Queen should have the power of disallowance, and the hon. gentleman instanced a case which he considered to be one of domestic legislation. But it struck me that a difficulty might arise as to what were questions of domestic legislation; and I do not think the hon. gentleman was particularly happy in quoting the case of the salary of the governor-general being cut down by the local legislature. So long as we give to the Queen the power of appointing the governor-general, we ought to allow her some exercise of discretion as to the salary her appointee shall receive. Under this bill the connection between the British Crown and Australia generally is so very slight, that we ought not to do anything calculated to weaken it. The time will possibly arrive quite soon enough for the connecting link to be cut altogether, and we should at any rate do nothing in this Convention to hasten that time.

Amendment negatived.

Amendment (by Dr. COCKBURN) negatived

That the following words be added to the clause:-"Provided that such disallowance shall be exercised on such subjects only as affect imperial interests and are specified in schedule B."


Clause 4. For the administration of the executive government of the commonwealth, the governor-general may, from time to time, appoint officers to administer such departments of state of the commonwealth as the governor-general in council may from time to time establish, and such officers shall hold office during the pleasure of the governor-general, and shall be capable of being chosen and of sitting as members of either house of the parliament.

Such officers shall be members of the federal executive council.

Sir JOHN BRAY: It seems to me that if we want to preserve the power of the senate this is where we should do it. I therefore propose:

That after the word "governor-general," line 9, the following words be inserted:-"and not less than two of such officers shall be members of the senate."

I think we ought to provide that some of the executive officers of the government should sit in the senate, and not leave the matter entirely open, as it is at present. I think we should provide that they should be all members of parliament, and not merely that they should be capable of being members of parliament. As a matter of practice, we know that they will all be members of parliament. I do not think there is any doubt about that. But if the senate is to exercise a proper influence in the management of the executive affairs of the country, we ought to provide that at least some of the executive officers of the government shall hold seats in that branch of the legislature. I shall propose also that the words, "capable of being chosen and of sitting as members of either house of the parliament," be struck out, so as to provide that the remainder shall be members of the house of representatives.

Mr. GILLIES: I would suggest that the hon. member ought not to press his amendment. We have not said in this bill that any member of the government shall sit in parliament; but we know it will be necessary that they should do so. We have said it is not necessary, though recognising that the practice has been for members of the executive government to sit in parliament. I will tell the hon. member a circumstance that arose in Victoria. There was an occasion on which a government was formed for the time-being and that government could not obtain a representative in the Legislative Council. If a provision such as he suggests had been, in force, the government would have been [start page 766] obliged to retire from office. Although I was a political opponent of that ministry, I have no hesitation in saying that at that time it unquestionably possessed the confidence of a majority of the people, and had a large majority in the Assembly. I ask the hon. member whether, because it could not just for the time-being obtain a representative in the upper house, a government should be compelled to retire from office? The government to which I refer did afterwards succeed in getting a gentleman to represent them in the Council. While we do not insist that members of the government shall sit in the assembly, I think it would be a mistake to provide that they shall hold seats in the senate.

Mr. MARMION: I should like to ask the last speaker whether there is anything in the Constitution of Victoria which requires that there shall be a member of the Legislative Council in the ministry?

Mr. GILLIES: No; but four of the ministers must be members of parliament!

Mr. MARMION: The case is not quite analogous, because if we inserted the provision proposed the government would take care to have some one in the senate to represent them.

Mr. FITZGERALD: I think the amendment is hardly required. Any minister wishing to conduct the business of parliament satisfactorily would find the senate quite capable of guarding its own honor, and he would not be so ill-advised as to put a marked slight upon the council by having no member of the government with a seat in that chamber. I think we may safely leave these things to adjust themselves. The good sense of the parliament is the best protection we have that they will work without friction.

Amendment negatived.

Mr. WRIXON: There is one point with regard to this clause to which I wish to call the attention of the hon. member in charge of the bill, and with regard to which I propose to add a few words at the

end of the clause. This clause may be said to constitute responsible government in the dominion. It provides that the governor-general may appoint officers to administer departments of state, and it declares that such officers shall be members of the federal executive council. I have no doubt that the effect and operation of that will be to constitute a system of responsible government in the dominion; but the question which I think requires some consideration, and some slight addition to the clause, is whether it will clothe them with all the vast constitutional powers which, under the system of the English government, belong to responsible ministers of the Crown. I myself do not believe that it will. The greatness of these powers, and how vast is the authority which any responsible minister of the Crown exercises in binding the Crown and the Sovereign, is well known, of course, to all my legal friends, and was well illustrated in the old case which I mentioned to the Convention before, namely, the case of Buron and Denman. The Supreme Court of Victoria has held that similar words in our Constitution Act do not carry with them any such implied authority to the minister who holds any such office, on the ground that the statute that created the office and defined his duties is not held to carry with it the larger powers to which I have adverted.

Sir SAMUEL GRIFFITH: There are no words like those in your Constitution!

Sir JOHN DOWNER: Nor in any constitution!

Mr. WRIXON: The words, "such officers shall be members of the executive council"?

Mr. CLARK: All that the hon. member wants is in that!

Mr. WRIXON: Of course that is the matter which I am mooting. In my opinion [start page 767] it is not; but it is a matter for consideration; and, whatever opinion may be taken of it, I myself think that the matter should be put beyond doubt; for, unquestionably, in carrying out responsible, every-day government, it is highly important that the ministers of the Crown here should, in regard to all Australian matters, be invested with exactly the same presumptions of authority and ratification from the Crown as apply to the English ministers with regard to all English matters.

Sir JOHN DOWNER: That does not arise out of responsibility!

Mr. WRIXON: I think it does, or, at any rate, it is a question of how we should express the idea. I myself would propose that we add to the last sub-clause "and responsible ministers of the Crown"; and I believe that then the court would interpret that with reference to ordinary constitutional usage, of which they would take judicial notice, and it is well known, of course, in England what a responsible minister is. It is known as a matter of fact and constitutional law. The courts recognise that, and if we declared that these officers were responsible ministers of the Crown I believe the court would import to that definition the knowledge which they would get from reading in the light of ordinary constitutional law. I point out this difficulty, and to meet it would propose, as an amendment:

That the following words be added to the clause and responsible ministers of the Crown.

Sir SAMUEL GRIFFITH: It seems to me that what the hon. gentleman wants to arrive at is already very clearly laid down in the bill. "Responsible ministers of the Crown" is a term which is used in common conversation to describe the form of government that we have. It, is really an epithet, but a bill is not the place for an epithet. What we should put into the bill is a definition of the powers and functions of the officers-not call them by names. We might as well say that they shall be called "Honorable." The executive government is vested in the Queen. The Queen cannot act in person. She, therefore, by her governor-general, appoints officers to administer departments of state. Is not that exactly expressing the real theory of government-the head of the state, through her officers, administering departments of state? The common name by which they are called is "ministers of the Crown," and because they hold office during pleasure, which pleasure is exercised nominally by the head of the state, but in reality by parliament, they are called responsible, because, if their conduct is such as not to give satisfaction, they have to answer for it by going out of office. The whole theory of

responsibility is contained in clauses 1 and 4. To say that they shall be called ministers of the Crown would not make them so more than they are already. The powers of officers are not vested in them because they are called responsible ministers, but because they are ministers, and the decision of the Supreme Court of Victoria, as I understood it, was that the Constitution of Victoria did not confer upon the colonial ministers of state the same powers as are held under the English Constitution by the English ministers.

Mr. GILLIES: Nor do any of the other Australian constitutions!


Mr. DEAKIN: Does this, in the hon. member's opinion, convey it?

Sir SAMUEL GRIFFITH: I do not know any other form of words that would convey it more clearly. The Queen is the head; she appoints different ministers of state, and they are responsible, and we define the extent of the executive power which they are to administer. What more could there be? I think it is absolutely complete.

Sir JOHN BRAY: I think that there is a good deal in the suggestion thrown [start page 768] out by the hon. and learned member, Mr. Wrixon. The officers are meant to be called "ministers of the Crown," and no doubt the hon. and learned member, Sir Samuel Griffith, intended to provide for it; but I do not think that the clause does provide for it. "For the administration of the executive government of the commonwealth-that is what they are appointed for.

Mr. WRIXON: They are heads of departments!

Sir JOHN BRAY: Not to administer the government as provided by this constitution; but they are appointed to administer certain departments of state, and the question might arise whether they were really responsible ministers or simply officers administering such departments of the state as the governor-in-council may from time to time-establish. It is true that the clause goes on to say that they shall be members of the executive council, and I think it is as right to assume that as to assume that they are responsible ministers of the Crown. I am quite willing in any way to assist the hon. member to carry out the idea that prompted the drafting of the bill, so as to make it read properly; but I do say that we ought to provide that they shall be something more than officers administering departments of state. They will be officers administering the entire government of Australia.

Sir SAMUEL GRIFFITH: Clause 4 begins with those very words!


For the administration of the executive government of the commonwealth the governor-general may from time to time appoint

officers, not to administer the executive government, but to administer certain departments of state. Each minister when appointed is responsible for the administration of a certain department; but there is nothing in the clause to indicate that ministers are to administer the entire government of the commonwealth. I think that in order to make the meaning clear, we ought to insert the words proposed by the hon. member, Mr. Wrixon.

Mr. CLARK: I think that both the hon. members, Sir John Bray and Mr. Wrixon, have been officers of state in their respective colonies, and have been in the position of responsible officers of the Crown. I would ask them to consider, when they held office, what made them responsible ministers? Was it the fact that in one case the hon. member was administering the treasury department, and in the other case the Attorney-General's Department; or was it not the fact that in addition to being officers of state they were also members of the executive council? That is what

made them responsible ministers. If the officers under the commonwealth are both officers appointed to administer departments of state and also members of the executive council they will be in the exact position that both hon. members have been in in their respective colonies when they have been called responsible ministers, and nothing else which can be put in the bill can make them more so.

Mr. DEAKIN: I wish to point out to the hon. member, Mr. Clark, that he has not, in my opinion, exhausted the situation by the definition he has given. He has brought to his aid all that part of the clause which would render these ministers the heads of departments, and the other part which makes them also members of the executive council. But there are two points to be considered in that connection. First of all, in Victoria a man remains an executive councillor after he has ceased to be a minister, after he has ceased to be the head of a department of state.

Mr. CLARK: And in Tasmania, too!

Mr. DEAKIN: There is no distinction here between those who are executive councillors and not ministers, and those who are executive councillors and ministers. And [start page 769] then, in the second place, it might be contended that the authority here given to the federal executive councillors is an authority which is vested in them as a whole, sitting in council. It is a body which advises the governor, and on whose advice the governor acts; but it does not clothe the ministers individually with that power and authority which ministers in Great Britain possess as responsible ministers of the Crown.

Sir' SAMUEL GRIFFITH: They act as the Queen's ministers, and in the Queen's name!

Mr. DEAKIN: But there are numerous acts in the administration of departments every day, and occasionally important acts, which are undertaken on the authority of a single minister, which do not necessarily come before the executive council as a whole.

Mr. CLARK: What words in the Victorian Constitution give that power?

Mr. DEAKIN: We have not the words in our Constitution.

Mr. CLARK: Nor in any other constitution!

Mr. DEAKIN: Nor in any other constitution. As my hon. colleague, Mr. Wrixon, interjects, it was held that we were acting illegally because we exercised, and claimed to exercise, such a power.

Mr. CLARK: We are all alike!

Mr. DEAKIN: Certainly; but it is not our desire that ministers under the commonwealth shall be in the same position as ministers under colonial constitutions. If there is a doubt as to the authority of a state minister, there should be no doubt as to the authority of a minister under this constitution. Surely it is a reasonable thing to claim. The hon. member, Sir Samuel Griffith, for instance, in his statement, which was perfectly clear, proceeded to construe the words of this clause by very considerable implications by a knowledge of the system of government as we have it, and of its working; and with that knowledge in his mind, by means of this clause, he certainly made a consistent statement. But it is exceedingly dangerous to trust to these implications which have been challenged in the past, and which may be challenged in the future on so vital a point as this. In fact, I do not know any point in the bill which is more vital than the question whether those whom the governor calls to his councils to undertake the administration of the state are really responsible ministers of the Crown in every sense of the term. In the first instance, the power of the Crown itself is nowhere defined, and cannot be defined under this constitution. It is vast and vague; but all the power which the Crown exercises ministers must be able to exercise when the need arises, and it can scarcely be possible even in this constitution, excellent as it is in most respects, to embody all possible contingencies. It is quite open for ministers of the commonwealth in the discharge of their duties to undertake actions which it

would be impossible to define within the four corners of the bill to undertake actions which it may be were not departmental actions, which were outside any department which had been constituted up to that time; and which, therefore, they had received no authority from the governor-general to deal with, and then we should have ministers referred to this limited and rigid constitution for the title-deeds of their authority; whereas it would be indisputable in the same cases in Great Britain that the Crown had power to meet such contingencies, and that having such power, the responsible ministers of the Crown were able to exercise the authority of the Crown in this very respect. Let the hon. member choose what words be will-and I am sure my colleague is no stickler for a particular phrase-but surely he will admit that just as the powers of the Crown are vast, vague, and undefined, so are the powers which responsible ministers are at times required [start page 770] to exercise. Let him use any form of words be pleases which will convey to the ministers of the commonwealth the same power of acting with that vast and vague authority, under any and every circumstance, which is possessed by ministers of the Crown in Great Britain. Let the hon. member do that, and he will meet the wishes of my colleague. I am perfectly certain that if we accept anything less than this for the ministers of the commonwealth we shall be failing in our duty, and we shall in a sense even limit the power of the Crown itself, since we shall provide no machinery by which it can work out its will in any particular emergency. Why should we limit the power of the Crown; why should we limit the power of the people; why should we diminish the authority of ministers of the Crown, who act for the Crown, and in the name of the people? Why should we not put in the clause any phrase the hon. member prefers, so long as it conveys without a scintilla of doubt to the ministers of the commonwealth all the powers which are possessed by ministers of the Crown in Great Britain?

Sir SAMUEL GRIFFITH: I am trying to get at the ideas which are underlying the argument of hon. gentlemen. I confess I have not got at them yet. The hon. member, Mr. Deakin, talks about the powers exercised by the ministers of the Crown in Great Britain. They do not differ in any respect from the powers exercised by ministers of the Crown in any other country.

Dr. COCKBURN: They are much superior to the powers of ministers here!

Sir SAMUEL GRIFFITH': Not in the east.

Mr. DEAKIN: The powers of our ministers are limited, and theirs are unlimited!

Sir SAMUEL GRIFFITH: What is the power to be exercised? The sovereign power of the state. The head of the state, being one person, cannot do everything himself. He, therefore, has ministers, servants nominally of himself, but really of the people, to do that work for him. They are called ministers, but it is the power of the head of the state which is being exercised all the time. What more words can you use for the purpose of saying that? He shall appoint proper officers to do it.

Mr. DEAKIN: Hear, hear!

Sir SAMUEL GRIFFITH: That is what we have said. The power is vested in the Queen. For the administration of that power, officers shall be appointed. What more can you say? Can you go on and say that when they are appointed they shall have power to do their duty, or say that they shall exercise such functions as are usually exercised by officers of state? It is all reasoning in a circle. The officers of state will exercise the functions of officers of state, and the officers of state are the same in England as anywhere else. The more you reason about the matter, the more you will find yourself getting into a circle, and coming back to your starting point. What additional power is there? If the hon. member will point out any power which can be exercised by the sovereign authority which is not expressed by the words, I shall not only be willing, but anxious to supply the defect. But I cannot see the defect he is pointing to. He assumes that English ministers have peculiar and extra powers. I should like to know what they are? They exercise the prerogative powers, of course, and the hon. gentleman, I think, has confused the argument used in Victoria as to whether colonial ministers have power to exercise the prerogatives of the Queen with the question whether they have power to exercise the functions conferred upon them by the constitution. The argument in the Victorian court was whether a certain

royal prerogative could be exercised by a colonial government. We cannot propose by a sweeping [start page 771] provision to say that all the royal prerogatives shall be exercised by the governor-general-in-council. That seems to me to be the nearest to what the hon. member is driving at. If that is what he means, then it is a question for fair consideration whether we ought to put such-a provision in the bill. But nothing short of that will cover all that he has been arguing for.

Mr. DEAKIN: I would say briefly, in answer to the hon. gentleman, that in the very case to which he has referred, the Supreme Court of Victoria held that the words "responsible minister of the Crown" appeared in certain statutes passed by the Victorian Parliament since the passing of the Constitution; but that they did not appear in the Constitution Act, and a majority of the bench declared that if they had been inserted there they would have made a very great difference in the way in which they would have regarded ministerial authority in the colony.

Sir SAMUEL GRIFFITH: But the Privy Council said that was wrong!

Mr. DEAKIN: As far as I am acquainted with their judgment, the Privy Council did not enter upon that particular issue at all. They have not even considered the point, to say nothing of giving an opinion upon it. The judgment, therefore, remains for what it is worth as a judgment of the Supreme Court. If the words my hon. colleague desires to introduce had been inserted in the Victorian Constitution Act, the ministers of Victoria would have had greater power than they now possess. The words the hon. gentleman has just suggested, conveying sovereign power to ministers, would be amply sufficient. Those words should be embodied in this constitution.

Sir SAMUEL GRIFFITH: That is to say, that all the royal prerogatives should be exercised by the governor-in-council!

Mr. DEAKIN: Exercised by him through his ministers. Unless that claim be put forward in our constitution, we shall have taken and be taken to have accepted something less, and we shall be always liable to be challenged with having exceeded the authority of the Constitution with which her Majesty has been pleased to endow us. Why should we leave the matter open to doubt? Why should we leave the ministers of the commonwealth liable to be challenged in the exercise of their duties to the people they represent? Why should we not now put forward the claim of ministers of the commonwealth to act for her Majesty and for the people of the commonwealth as if they were her Majesty's imperial ministers, excepting, of course, in cases where imperial interests are concerned, which would necessarily attach to the British Government and the Imperial Parliament? The hon. member, Sir Samuel Griffith, seems to have considered a phrase that would be acceptable, and if, especially after this debate, we were to fail to adopt some such words, we shall be taken to have admitted and accepted at the outset a limited authority which, I am sure, the commonwealth would never willingly accept.

Mr. FITZGERALD: I should like to ask Sir Samuel Griffith whether, in his opinion, the effect of the insertion of these words would be to enlarge the scope of the duties or prerogatives of responsible ministers?

Sir SAMUEL GRIFFITH: In my opinion, they would not; and I think, at the same time, that they are extraordinary words to put in an act of parliament. No other words I know of would cover that for which the hon. member is asking; and it is rather a singular thing to ask the Imperial Parliament to do for Australia a thing which it has never done for itself.

Mr. DEAKIN: Of course not. They have no need; they have a vast reserve of power. Theirs is an unwritten constitution!

[start page 772] Sir SAMUEL GRIFFITH: To ask the Crown in one short sentence to surrender, in respect to Australia, all its prerogatives is rather an extraordinary thing to do. At this moment I believe no one

knows what they all are. No one could at once enumerate them all; and hon. members may rely upon this, that the enumeration would be carefully gone through, and that if there were one prerogative concerning which there was the slightest doubt-that is, with regard to its inclusion-parliament would not pass it, and it would be quite right, too. We might ask for it; but would it not be a pity to lose the constitution because one point could not be granted? For instance, one of the royal prerogatives is to declare war. What about that?

Mr. FITZGERALD: That is what the hon. member, Mr. Deakin, would like!

Mr. DEAKIN: No, I would declare peace!

Sir SAMUEL GRIFFITH: The mere mention of that one instance is sufficient to show that such sweeping words cannot be inserted.

Mr. DEAKIN: We can make an exception in favour of imperial interests. We have no desire to interfere with the imperial prerogative in matters of war and peace!

Sir SAMUEL GRIFFITH: I take it that the proper, place for such a clause would be the enacting part of the bill.

Mr. DEAKIN: No; when we are dealing with the executive government. The governor-general has power for everything, and delegates it!

Sir SAMUEL GRIFFITH: No; in this case there would be a surrender by the Queen, which would have to be in the enacting part of the bill, which applies to all the Queen's dominions.

Mr. FITZGERALD: Canada did not ask for it!

Sir SAMUEL GRIFFITH: At all events, I would ask hon. members to pause before they determine upon asking the Queen to surrender all her prerogatives in Australia. For my part, I believe that all the prerogatives of the Crown exist in the governor-general as far as they relate to Australia. I never entertained any doubt upon the subject at all-that is so far as they can be exercised in the commonwealth. Certainly the putting in of such a phrase as has been suggested ought not to done without very grave consideration.

Mr. THYNNE: I think the two contending parties might be reconciled without any material addition to the clause, but with only a slight re-arrangement of it. I would ask the hon. member, Sir Samuel Griffith, to follow me while I read the clause as I propose to leave it:

The governor-general may, from time to time, appoint such officers as may be necessary for the administration of the executive government of the commonwealth. Such officers shall hold office during the pleasure of the governor-general, and shall be capable of being chosen and sitting as members of either house of parliament. Such officers shall be members of the federal executive council, and shall administer such departments of state of the commonwealth as the governor-general-in-council may from time to time establish.

Sir THOMAS MCILWRAITH: That would not do!

Mr. THYNNE: As the clause stands it encourages the idea that ministers are dissociated from the combination to which we are accustomed, and that they would be appointed to administer certain departments, but not to generally advise the governor.

Mr. DEAKIN: I trust the question will not be allowed to pass before the Convention has fully considered it. The objection of the hon. member, Sir Samuel Griffith, to the amendment of my hon. colleague is really an objection to the phrase "responsible minister of the Crown." The hon. member

says it is an "epithet," but nevertheless it points in two very valuable directions. It points, in the first instance, to the exercise by ministers of all powers [start page 773] in the Crown, and, in the second instance, to the responsibility of those ministers to parliament for every action they take in their ministerial capacity. In both of these respects the phrase, although it may be called an epithet, is an extremely valuable one. Why not meet the case by striking out the word "officers," and make the clause read:

The governor-general may from time to time appoint responsible ministers of the Crown.

Sir HENRY PARKES: The hon. member would not find such a phrase in any English law!

Mr. DEAKIN: It is used in a number of our acts.

Sir SAMUEL GRIFFITH: It has been used by inadvertence in Victoria!

Sir JOHN DOWNER: Is the hon. member sure the words are in the Victorian act?

Mr. DEAKIN: They are not in the Constitution Act, but they are in several other Victorian acts. They are not required to be used in Great Britain, where the constitution is unwritten; but since we are trying to reduce a constitution to words, since we are setting down in black and white what the executive relations of the government are, I think we should be definite. Complete as is the skeleton of constitutional government which the hon. member, Sir Samuel Griffith, has given us in these clauses, I maintain that it is, after all, only a skeleton, and that the life which is implied by its being administered by responsible ministers has yet to be imparted to it. We do not desire to introduce words which might seem to claim for Australia royal prerogatives; but we do wish to introduce words claiming all the prerogatives of the Crown directly relating to Australia. What we say is that these clauses, as they stand, do not with sufficient distinctness make that claim, and that we should seize every opportunity of placing points of this importance beyond all dispute, that we should embody, in these clauses the claim of ministers of the commonwealth to exercise all the prerogatives of the Crown which may be necessary in the interests of the commonwealth. I would ask the hon. member, Sir Samuel Griffith, to himself suggest a phrase, and in default of that to accept my hon. colleague's amendment. I would suggest words claiming that as regards the interests of the commonwealth, ministers of the Crown here should have the same powers as have ministers of the Crown in Great Britain, distinguishing Great Britain of course from the empire at large.

Sir SAMUEL GRIFFITH: No more than the ministers of France, Germany, or the United States!

Mr. DEAKIN: In Great Britain there is the peculiarity that, living under an unwritten constitution, it is never known what new departures may be taken.

Sir SAMUEL GRIFFITH: It is absolute power to administer the sovereignty of the state!

Mr. DEAKIN: Exactly; surely all the limits that we want of that absolute power in the commonwealth is, so far as it relates to the commonwealth, to exclude all prerogatives relating to the empire outside the commonwealth. There is no pretence to claiming the power of proclaiming peace or war, or of exercising power outside our own boundaries; but let us have it stated plainly in the constitution that the officers here, called heads of departments, shall be absolutely ministers of the Crown. We know what that means.

Sir HENRY PARKES: That is exactly what we do not know!

Mr. DEAKIN: And there is this great advantage: we do not know what the royal prerogative is. We have not exhausted its meaning. Had we not better take words which are used in common speech, the meaning of which we have not exhausted, when we are all at one in making the claim for the people of the [start page 774] commonwealth that their parliament and ministers shall have all the

powers necessary to administer the affairs of the commonwealth? No one has argued for this more strongly than the hon. member, Sir Samuel Griffith. If be is convinced that the clause gives that power, while other members of the Committee are convinced that it does not, would it not be better to carry out the principle which, we have followed throughout, and let us have no doubt on the point? Let us make the most explicit, indisputable, unmistakable claim to this power.

Sir JOHN BRAY: The hon. member's suggestion will not do that!

Mr. DEAKIN: By calling these officers responsible ministers of the Crown, they will be empowered to meet all unanticipated contingencies.

Sir SAMUEL GRIFFITH: The words do not convey, that meaning to my mind!

Mr. DEAKIN: They did to the Supreme Court of Victoria. We had a number of judges starting that if these words were contained in the Constitution Act of Victoria they would adopt a different attitude, and hold that ministers had greater power than they now have, those words not being in our Constitution Act. Why not employ those words in this constitution, and place our meaning beyond doubt?

Sir SAMUEL GRIFFITH: It is difficult to know what is our meaning which it is desired to put beyond doubt. I agree that in this bill our meaning should be placed beyond doubt, but we must first find out what is our meaning. The hon. member uses the word "responsible," which simply means this: that ministers take the brunt of the advice which they give in the exercise of sovereign power of any kind. That does not give them any additional power. The word "responsible" only means in that case that the ministers take the blame. It is not a question of giving authority, it is a question as to who is to be punished for the improper exercise of authority. The word "ministers" means no more than "officers of state." It is only another epithet. Ministers of the Crown means officers of the Crown where there is a Crown.

Mr. DEAKIN: The words mean something more than that!

Sir SAMUEL GRIFFITH:: The argument is becoming so refined that it is impossible to distinguish the differences.

Sir JOHN BRAY: You do not call them officers of state!

Sir SAMUEL GRIFFITH: Clause 4 says that for the administration of the executive government there shall be officers to administer such departments of state as the governor may prescribe, and he is to act on their advice. These are expressions that have been used so often that, they have become stereotyped; but I think the only authority for using in an act the words "responsible ministers of the Crown" is an error on the part of a draftsman in Victoria. It has not been followed by any of the other colonies. In some customs act somebody or other used the words "responsible minister," and the Victorian judges thought that having been so used, there was something defective in the Constitution Act. I do not draw that inference; I think that the defect was in the subsequent act.

Mr. WRIXON: I am convinced that the Convention is making a serious mistake. We are asked to pass this clause in exactly the same terms that would suit a Crown colony. Every word in this clause would apply equally to ministers and officers in a Crown colony which was about to be founded. I would be happy if any better phrase could be obtained than I have suggested. I think these amendments should be drawn up by the gentleman in charge of the bill. The words "responsible ministers of the Crown" were used in Victoria, not as the hon. member, Sir Samuel [start page 775] Griffith, thinks, by mistake, but are used repeatedly, and I think most justly, because no principle is better understood than that the courts take judicial notice of all things-mercantile, political, and so on. And the political meaning, under the Constitution of England, of "responsible minister of the Crown," is perfectly well known. What is desired is this: that a minister in Australia shall have the same

position with regard to the Crown in all matters Australian, as a minister in England has with regard to all matters English. We desire to have that object carried out. I am sorry the Convention does not attend to it, because I am sure we are making a mistake.

Mr. KINGSTON: We are very much indebted to the hon. member, Mr. Wrixon, for calling attention to this matter. There is no hon. member who has had more practical experience, in view of recent events, of the necessity for making some provision of this kind. His attention has been drawn to the matter by the litigation which has lately taken place on a very nice constitutional question. A decision was pronounced by some, at least, of the Victorian judges which forms the position for which the hon. member contends, namely, that it is necessary to make an amendment in the bill in order to give ministers of the Crown in Australia certain prerogative rights which are exercised by ministers in England for the benefit of the community. When we are legislating for the creation of a constitution for the commonwealth which we hope to establish here, we should at least profit by the experience of past years in order to clothe the officers of the commonwealth with all the powers which may happen to be necessary for the preservation of the rights of the community. There is no more important power than the one which was in issue in the litigation to which I have referred; that is, the right of the representatives of the executive ministers to act without recourse to parliamentary authority in order to prevent aliens from effecting a landing on our shores. We should render ourselves liable to be accused of negligence if we did not make every effort to see that this question was perfectly clear, so that in future we should have the power which was questioned in connection with the late litigation, and which at present there is some doubt whether the colonial governments possess. We have the decision of some at least of the Victorian judges that the power is not possessed by Victorian ministers; but that if certain phraseology had been employed, they would possess the power. We do not know to what extent that decision may have been qualified by the judgment of the Privy Council; but it seems from the telegrams that it is doubtful as to whether or not that decision has in any respect been qualified. There is some room for objection to the employment of the word "responsible." We know what we wish to do. We desire to confer on the executive ministers the right to exercise this prerogative as far as the commonwealth is concerned; but I do not think we desire to expressly perpetuate the system of responsible government. I am certainly an advocate for the continuance of that system; but in view of the discussion which took place at a previous stage, I think we have done well hitherto in avoiding the use of the term "responsible," in avoiding the use of any expression which it might be urged would have the effect of preventing us from altering our practice with reference to responsible government in future as occasion may require. I hope the hon. member who has moved the amendment will leave out the word to which I have referred, and to which it seems that objection can fairly be taken. At the same time, I will promise him that I will do all I can to assist him in achieving the object which he has in [start page 776] view in a manner which will not be open to the objections which I have urged. It occurs to me that something of the sort might be done if we amended section 1 on page 17, which vests the executive power and authority of the commonwealth in the Queen, to be exercised by the governor-general. Possibly some words might be inserted to show that that executive power and authority which would be exercised by her Majesty's representative under the advice of a responsible ministry would extend to the exercise of the prerogative which it is now desired to confer; but at the same time I sympathise with the remark made by various hon. members that it is a very delicate question. We should look very closely at the way in which we make any amendment on the subject. The object in view is one which I am convinced we ought to strain every nerve to achieve, and I shall be glad, indeed, if the hon. member who moved the amendment can arrange with the hon. and learned member, Sir Samuel Griffith, for some satisfactory mode of effecting what I believe to be a purpose which will commend itself to all.

Sir SAMUEL GRIFFITH: I have been all along trying to meet my hon. friends for the purpose of removing any doubt. A form of words has occurred to me since I spoke last, which I believe would relieve the minds of hon. members, and does not appear open to any objection. I would propose to add to the clause the words "and shall be the Queen's ministers of state for the commonwealth." I would suggest that the hon. and learned member should withdraw his amendment.

Mr. WRIXON: I shall be happy to withdraw my amendment, as I think that the addition to the clause of the words suggested by the hon. and learned member will adequately carry out what I desire.

Amendment, by leave, withdrawn.

Amendment (by Sir SAMUEL GRIFFITH)agreed to:

That the words "and shall be the Queen's ministers of state for the commonwealth" be added to the clause.

Clause, as amended, agreed to.

Clause 6. There shall be payable to the Queen out of the consolidated revenue fund of the commonwealth for the salaries of such officers a sum not less than fifteen thousand pounds per annum.

Mr. ADYE DOUGLAS: I would ask the hon. and learned member, Sir Samuel Griffith, whether it was intended that the £15,000 should be divided among the ministers of the Crown, however few they might be? There might be only three.

Mr. MUNRO: If they do the work, why should they not get the money?

Sir SAMUEL GRIFFITH: I think there ought to be power to control that. We contemplate seven ministers being required at the start, but the parliament will settle how many ministers there shall be. I think it would be better if this were not made a rigid provision of the constitution.

Sir JOHN BRAY: The clause says, "not less than £15,000"!

Sir SAMUEL GRIFFITH: Why should the parliament not have power to reduce the amount? I think it would be better if the operation of this clause were limited in the same manner as the next one. It is clearly a matter for the parliament, the provision being an initial one.

Amendment (by Sir SAMUEL GRIFFITH) agreed to:

That the following words be inserted before the word "There," line 1:-"Until other provision is made by the parliament."

Mr. J. FORREST: I should like to ask the hon. member whether he proposes that the salaries of ministers of the Crown should be altered by parliament at any time it chooses, that is, that during any session any member shall be at liberty to move a reduction in the ministers' salaries?

[start page 777] That would be a provision not usual in the constitutions with which I have had anything to do. It should only be done by an alteration of the constitution. If there is a civil list it can only be altered in the way provided for amending the constitution. If ministers' salaries are to be altered at any time, great power will be placed in the hands of members, and they may annoy ministers by having a great controversy every time the ministerial salaries come under review. The clause says that the amount for ministers' salaries shall not be less than £15,000. Personally, I do not care what the amount is; but it seems to me that ministers of the Crown should not be subjected to the indignity, every time an appropriation act is before parliament, of having their salaries discussed in the assembly. In the colony which I represent, it is as difficult to touch the civil list as it is to alter any other part of the constitution.

Mr. MARMION: I have not had experience of the voting of large sums of money, but I have some idea in regard to the credit that should attach to a minister of the Crown; and when we are

building up a fabric which is intended to be a lasting structure, and of which the foundations shall be strong and durable we ought to be careful how we deal with this matter. I agree with my colleague in saying that it would be a pity if parliament should have the power, without considerable trouble, to alter the salaries of ministers, and could bring them under discussion every year. It seems to me to be rather discreditable, and, to a certain extent, to take away from the dignity which surrounds the position. I dare say the committee, after considerable attention to the matter, arrived at the conclusion that £15,000 per annum was little enough to enable the ministers to maintain their high positions; and after the amount has been arrived at, it seems to me that there should be a great deal of difficulty surrounding its reduction, though there should still be the power to increase it.

Mr. A. FORREST: No doubt!

Mr. MARMION: I am afraid the hon. member is rather inclined to regard these things from a narrow-minded point of view, but I have been accustomed to look at them from a higher standpoint, and to think of the future as well as of the present. Remembering that in the future the responsibility and power of these ministers may be largely increased, and that instead of ruling over 2,000,000 or 3,000,000 people, they may rule over 20,000,000, I say that the difficulties surrounding the alteration of their salaries should be made as great as possible, and I agree with my hon. colleague that it would be a pity if any amendment should be made in the clause.

Amendment (by Sir SAMUEL GRIFFITH) agreed to:

That the words "a sum not less than" be omitted with a view to the insertion in lieu thereof of the words "the sum of."

Clause, as amended, agreed to.

Clause 8. The executive power and authority of the commonwealth shall extend to all matters with respect to which the legislative powers of the parliament may be exercised, excepting only matters, being within the legislative powers of a state, with respect to which the parliament of that state for the time-being exercises such powers.

Sir SAMUEL GRIFFITH: This afternoon I have had circulated an amendment which I propose to make in this clause. It does not alter its intention, though it certainly makes it shorter. As the clause stands, it contains a negative limitation upon the powers of the executive; but the amendment will give a positive statement as to what they are to be. I move:

That in line 2 all the words after the words "extend to" be omitted with a view to the insertion in lieu thereof of the words "the execution of the provisions of this constitution, and the laws of the commonwealth."

[start page 778] That amendment covers all that is meant by the clause, and is quite free from ambiguity.

Amendment agreed to; clause, as amended, agreed to.

Clause 10. The control of the following departments of the public service shall be at once assigned to and assumed and taken over by the executive government of the commonwealth, and the commonwealth shall assume the obligations of all or any state or states with respect to such matters, that is to say-

Customs and excise, Posts and telegraphs,

Military and naval defence,

Ocean beacons and buoys, and ocean lighthouses and lightships,


Mr. WRIXON: I have been favoured with certain suggestions with regard to the bill by my learned friend, the Attorney-General of Victoria. These have been laid before the hon. member, Sir Samuel Griffith. One of them deals with this clause, and I wish to ask the hon. member if he has considered the point raised, and whether be is of opinion that the clause sufficiently meets the objection of my hon. friend?

Sir SAMUEL GRIFFITH: Will the hon. member state the objection to the Committee?

Mr. WRIXON: I shall be very happy. This clause hands over to the federal government a number of departments-customs and excise, posts and telegraphs, military and naval defence, and others. The Attorney-General of Victoria has pointed out that our Customs Department includes a great many other things, as, for example, the Immigration Office, the Mercantile Marine Office, the Powder Magazine Office, the Fisheries Department, and the Marine Board, and he desires to know whether it is intended under the bill to take over the whole of these from the operation of the local government, or whether the general government are to be strictly confined to customs and excise? That is the difficulty which he has raised.

Sir SAMUEL GRIFFITH: It seems to me that the meaning is pretty plain. The clause says the commonwealth shall assume the obligations of any state "with respect to customs and excise." If, in a coastal town, the customs-house officer is pilot or lighthouse-keeper as well, it will not take over those functions.

Mr. GILLIES: The same remark would apply to the posts and telegraphs, which include other departments. I do not see that it is possible, under the clause, for the federal government to take over Such departments. They would have to be specifically mentioned before they could be included in the obligations of the commonwealth.

Mr. FITZGERALD: Is it understood that the state governments will entirely surrender control of country post-offices, delivery of mails, and everything connected with the postal service.



Mr. BAKER: Before the question is put, I would ask if the Committee have considered the question of telephones? Of course, it is not a very important matter; but the telephones are worked by the same, staff as the telegraphs, and if the central government took over the telegraphs, and the local governments retained the telephones, they would have to establish new departments.

Mr. GILLIES: Telegraphs include telephones!

Mr. BAKER: Of course, if the word "department" governs the words "posts and telegraphs," and telephones are included, I am quite satisfied.

Mr. ADYE DOUGLAS: This clause gives over to the general government the whole of the departments mentioned, before the federal parliament comes into existence. It seems to me that it is undesirable to hand over the whole of our post and telegraph departments, which in the colony I repre- [start page 779] sent include other departments, to the federal government. That ought not to be done until, the parliament properly arranges matters, and carries them out in accordance with the provisions of clause 52, which deals, with the powers of parliament. All these powers are handed over, to the executive government at once. It seems to me to be sufficient to hand over to the

executive government the customs and excise departments, leaving the other departments to remain until parliament meets, when the several states will have had the opportunity of separating departments affecting telephones, stamps, and so on, from the other departments with which, they are connected.

Sir SAMUEL GRIFFITH: They will do that before in anticipation!

Mr. ADYE DOUGLAS: It is not likely that they will do it until they know exactly how far the commonwealth parliament intends to operate upon these matters. The expressions used are of a general nature, and there may be taken over a great deal more than we intend to be taken over. Therefore I think it would be as well to omit the words "posts and telegraphs" from the clause. Military and naval defence matters are not of so much importance. Matters relating to ocean beacons and buoys, and ocean lighthouses and lightships, however, are in the same position as posts and telegraphs. In Victoria and Tasmania these matters are connected with different departments; therefore I think it would be well to limit the immediate assumption of control to matters affecting customs and excise, and military and naval defence.

Amendment (by Sir SAMUEL GRIFFITH) agreed to:

That in line 6, the words "all or" be omitted.

Amendment (Mr. ADYE DOUGLAS) negatived:

That in line 9, the words "Posts and telegraphs" be omitted.

Amendment (by Mr. ADYE DOUGLAS) negatived:

That in lines 11 and 12, the words "Ocean beacons and buoys, and ocean lighthouses and lightships," be omitted.

Clause, as amended, agreed to.

Clause 11. All powers and functions which are at the date of the establishment of the commonwealth vested in the governor of a colony with or without the advice of his executive council, or in any officer or person in a colony, shall, so far as the same continue in existence and need to be exercised in relation to the government of the commonwealth, with respect to any matters which under this constitution pass to the executive government of the commonwealth, vest in the governor-general, with the advice of the federal executive council, or in the officer exercising similar powers or functions in or under the executive government of the commonwealth.

Sir SAMUEL GRIFFITH: I understood that the hon. member, Mr. Wrixon, intended calling attention to this matter. Amongst the memoranda with which that hon. gentleman has favoured me, made by Mr. Shiels, it is pointed out that in some instances power is vested, not in an individual, but in a board. For instance, matters affecting ocean lighthouses are dealt with by marine boards. I therefore move:

That in line 5, the word "person" be omitted with the view to the insertion of the word "authority."

Amendment agreed to.

Amendment (by Sir SAMUEL GRIFFITH) agreed to:

That in line 13, after the word "officer," the words "or authority" be inserted.

Clause, as amended, agreed to.


Clause 1. The parliament of the commonwealth shall have power to establish a court, which shall be called the Supreme Court of Australia, and shall consist of a chief justice, and so many other justices, not less than four, as the parliament from time to time prescribes. The parliament may also from time to time, subject to the provisions of this constitution, establish other courts.

[start page 780] Mr. KINGSTON: At an earlier stage in the discussion of this bill I withdrew an amendment which I then moved in favour of giving legislative powers to the federal parliament for the establishment of courts of conciliation and arbitration. I did this because it was pointed out by the hon. member, Sir Samuel Griffith, that it would be more convenient to effect any amendment the Convention might desire in the clause which we are now discussing, dealing with the federal judicature. I propose to move now the addition of words to this particular clause, which will, give the federal parliament power to establish federal courts of conciliation and arbitration for the settlement of industrial disputes. The amendment I desire to make consists in the addition to the clause of the following words:-

including courts of conciliation and arbitration for the settlement of industrial disputes.

I am not going to travel over ground upon which I have previously touched. This simple fact remains-that in view of the extent of the organisations which take part in these industrial disputes, having ramifications throughout the whole of Australia, it is impossible for any one colony to legislate for the creation of a tribunal which can deal satisfactorily with them. Under these circumstances, it resolves itself into this question: whether we shall sit idly by and allow the contending parties to settle the matter for themselves, disregarding the disastrous results which invariably accrue from the prolongation of these disputes; or whether we shall do what we can for the purpose of creating facilities by which these disputes maybe avoided or their duration shortened? I do not think it possible for the question to be answered in any other way than by a recognition of the duty which it appears to me is imposed on us in the creation of this constitution to make provision for the erection of courts which will satisfactorily deal with questions of the magnitude of those involved in industrial disputes. A federal judicature is proposed to be created. Various branches of jurisdiction will no doubt be conferred upon it; but I make bold to say that there is no more important branch of jurisdiction which can be given to it than the necessary jurisdiction for the investigation of troubles of the character to which I refer, and their decision, according to the substantial justice of the case. At the present moment various schemes are occupying the attention of the different local legislatures having for their aim the supply of facilities for the prevention of these disputes; but I am sure that every one who has felt it his duty to consider the question will recognise the force of the argument, that local legislation cannot satisfactorily deal with the question. I do not propose at this stage to indicate on what lines I venture to consider legislation should proceed; but I think that if at the time of the late labour troubles we had had something in the shape of a federal tribunal, having the confidence of entire Australia, having for its sanction Australian legislation, public sentiment would have been of such a character that the disputing parties would practically have been forced to refer their disagreement to this tribunal for settlement, and to abide by the result. All I ask in submitting this amendment to the notice of the Convention is this: that we may recognise that it is a question with which the federal parliament should have power to deal. If we do not take the power now, it can only be obtained by an amendment of the constitution. Surely it is a power which should exist, however much room there may be for difference of opinion as to the precise way in which it should be exercised. I merely refer in the amendment I move to the establishment of courts of conciliation and arbitration. The first duty of the proposed tribunal would no doubt be [start page 781] to endeavour to reconcile the parties. The Second would be, in default of success in the endeavour to bring about a reconciliation between the contending parties, to pronounce a decision according to the justice of the case, which decision should bind the contending parties for a limited period, and which should be capable of enforcement. Courts of conciliation and arbitration appear to me to be highly desirable of establishment in view of the

matters to which I have called attention, and it is with the sole purpose of enabling the federal legislature, when it sees fit and in such mode as it deems most expedient, to call these tribunals into existence that I move this amendment.

Amendment proposed.

Sir SAMUEL GRIFFITH: I should like for my own satisfaction, before voting on this question, to know how the hon. gentleman makes out that his amendment is not an interference with property and civil rights? That is the difficulty I feel. If courts of conciliation can be established, if anything can be done to settle labour disputes, I think it is a power the federal parliament might very well have. But I have been trying for the last three months to see how it could be put within their function without interfering with the proper function of the states, and I have not been able yet to answer that question.

Mr. DEAKIN: The hon. member, perhaps, might answer another difficulty which has suggested itself to me. I am cordially with him in all he desires to accomplish, and believe that much could be achieved in this direction by such legislation as he has outlined; but I fail to see that it can possibly become, for a very long time to come, a proper subject for federal legislation. On the contrary, I fear that if this power were given to the federal legislature, it might be exercised less satisfactorily than it would be by the individual colonies. There must be in such a matter as this, a certain amount of experimental legislation. The colonies, left to themselves, may take different, and, to some extent, diverse paths; and from the knowledge then gained, the federal parliament may legislate in the future. The hon. member's amendment, I take it, would not prevent the exercise by the several colonies of their present power of legislation on this question.

Mr. GILLIES: It would!

Mr. KINGSTON: Not at all!

Mr. DEAKIN: I imagine that the bestowal of this power on the federal parliament would not operate to the exclusion of the power at present possessed by the several colonies, until the federal parliament did actually legislate. If this provision would operate as a prohibition to the local parliaments I should be compelled to vote against it. But I think it simply gives the power to the federal parliament in the future, and possibly there cannot be much objection to that, unless it be on the ground suggested by the hon. member, Sir Samuel Griffith. I certainly think we should do nothing to prevent or even discourage the several colonies from dealing with this problem each in its own way, because only after the path has been trodden by the several colonies, and trodden in different ways, will it be probable that the federal parliament will ever be moved to bring into existence so immense an organisation as would be necessary to cope with the industrial disputes of Australia.

Mr. DIBBS: I think the idea of the mover of the amendment is to give power to the federal parliament to establish such courts. Long before federation would become an accomplished fact conciliation courts would, no doubt, be established in the various colonies, or at least some of them would have attempted to legislate with a view to a settlement of the question. Already the subject has been introduced into the Parliament of New South [start page 782] Wales and favourably received, and the hon. member, Mr. Kingston, has, I believe, introduced it into the Parliament of South Australia; and I have no doubt that-when the minds of the people are brought to bear on the advantages of conciliation, legislation will be passed in various colonies which will pave the way to a law of conciliation being ultimately passed by the federal parliament. I see no harm in the insertion of words giving the federal parliament power to establish such courts if it thinks necessary.

Mr. KINGSTON: Referring to the remark which fell from Sir Samuel Griffith, if I understand the hon. gentlemen rightly, his objection is to the establishment of any court of conciliation or arbitration.


Mr. KINGSTON: Then I fail to comprehend the argument of the hon. delegate. I understand him to say that the establishment of these courts by the federal legislature would be an interference with civil rights.

Sir SAMUEL GRIFFITH: With property and civil rights!

Mr. KINGSTON: Does the hon. delegate object to it on the ground that state matters should be regulated by the states themselves?

Sir SAMUEL GRIFFITH: Certainly; property and civil rights are left to the states!

Mr. KINGSTON: Then I understand that the objection of the hon. delegate is not as to the propriety of the establishment of courts of conciliation and arbitration; but as to the expediency of leaving these matters to be dealt with by the states themselves.

Sir SAMUEL GRIFFITH: Yes, that is the point which I take!

Mr. KINGSTON: The position that I ventured to take was that the states could not deal with these questions to the extent of the creation of a federal tribunal could not deal with them to the extent of calling into existence a court competent to pronounce a decision having force not only in the particular state, but also throughout the commonwealth; and taking, as I believe I am justified in taking, the hon. member's argument to amount to this that he admits the propriety of legislation on the subject, but thinks the authority to legislate should be confined to the states themselves-I venture to say that it is wanting in force, because he does not recognise the strength of the position that the states have no power to legislate for the creation of a federal tribunal. With reference to the remarks of the hon. delegate from Victoria, Mr. Deakin, if I thought that the amendment which I indicate would prevent the states from legislating within their own boundaries or that it would affect the free exercise of their powers within their limits with regard to the creation of tribunals of this sort, I would not for a moment dream of moving the amendment; but it cannot have any such effect, and I am sure that the hon. member will see it. The amendment I moved does not place even the same restriction which, as regards a great variety of subjects, is placed upon the action of the states in matters of very considerable moment. There are cases in which the commonwealth and the state will have concurrent powers of legislation. Even in those cases it will be necessary to any restriction of the state rights that the federal power shall be exercised; but in this case it is not a question of concurrent legislative powers. The state has no power whatever for the creation of a federal tribunal, and with the view of giving the federal parliament a power which otherwise neither commonwealth and state will possess I ask the Convention to consent to the amendment. No doubt a variety of arguments might be advanced as to the mode in which federal legislation should proceed-as to the precise direction [start page 783] which it should take-as to the details of the scheme that would commend itself to the good sense of the federal parliament, but having listened to the criticisms to which my suggestion has been subjected, I confess that I cannot see any valid reason why the federal parliament should not have the power to deal with the question. Why should we at this early stage in the constitution of the commonwealth resist the proposal to give the parliament authority to deal with it when the occasion arises, and when a scheme is propounded which will commend itself to the good sense of the majority?

Mr. GILLIES: Does this amendment give the parliament that power?

Mr. KINGSTON: The amendment which I now propose would give the federal parliament the power of legislating with reference to the establishment of courts of conciliation and arbitration in such a way as they think fit.

Mr. GILLIES: In what clause?

Mr. KINGSTON: The clause now under consideration. As I have previously pointed out, I move the amendment at this stage of the bill, as no doubt the judicature, if created, would have most important functions. If we do not assent to an amendment of the character now indicated, the federal parliament, shortly after its constitution, might be desirous of dealing with this question, and a scheme might be propounded which commended itself to the good sense of a large majority of both houses, but it would be utterly powerless. It could do nothing, and the states themselves would be similarly situated. Under these circumstances it does appear to me that the force of the arguments is altogether in favour of giving the power, however much the federal parliament may deliberate, and whatever room for difference of opinion there may be as to the precise way in which it should subsequently be exercised.

Mr. GILLIES: I should like to have the attention of the hon. and learned member, Sir Samuel Griffith, for a minute. There is a proposal made here that the parliament should be able to establish certain courts, and that these courts shall be able to deal with laws having reference to conciliation and arbitration. I want to know if, in the event of these words being added, there is in the bill any power given to the parliament to deal with this subject?

Sir SAMUEL GRIFFITH: I do not quite understand the hon. member's question!

Mr. GILLIES: In this bill we have dealt with a series of provisions giving the parliament of the commonwealth power to deal with certain questions; but this question is not included. I desire to know whether merely giving the courts of law power to deal with a question of this kind necessarily involves the power of the legislature to legislate on the subject?

Mr. FITZGERALD: I should like to supplement the remarks of the hon. member, Mr. Gillies: Suppose the federal court gave a decision which was at variance with that of the courts of the various states, which would rule?

Sir SAMUEL GRIFFITH: The question which the hon. member, Mr. Fitzgerald, asks is rather a difficult one to answer. In America the supreme court in each state is supreme in its own limits, and so is the federal supreme court supreme in its limits, and the same point might be decided in two different ways, and both decisions be executed in the same state. In reply to the hon. member, Mr. Gillies, I think that the last paragraph in clause 52 would give the legislature power to legislate on the subject. The words are:

Any matters necessary or incidental for carrying into execution the foregoing powers, and any other powers vested by this constitution in the parliament or executive government of the commonwealth. [start page 784] That leads me to another question-how would the decision of a court of conciliation be carried out?

Mr. GILLIES: That is a question for the act itself!

Sir SAMUEL GRIFFITH: I confess I feel very great doubt whether the provision should or should not be put in here. I do not think the hon. member, Mr. Kingston, has removed the difficulty that I felt as to its being an interference with property and civil rights. Does the hon. member mean that a court of conciliation might direct that the wages of workmen should be raised?

Mr. KINGSTON: That is a question of detail!

Sir SAMUEL GRIFFITH: It is a question of principle. Does the hon. member mean matters of principle like that, because that might entirely depreciate the value of property in a state, or drive an industry out of a state? From that point of view, my vote will be determined in the matter. I think, much as I desire to get this power for the federal parliament, that we ought to hold fast by the principle that we are not going to interfere with the rights of property in the states.

Mr. GILLIES: I would suggest to the hon. member, Mr. Kingston, that it would be wise to await the result, and to see whether the colonies themselves could not do something. I can quite understand the hon. member's difficulty, and have appreciated it for a long time. The labour question is not a question that belongs merely to any one colony; but, as we have had experience, it permeates all the colonies, and a movement originating in one colony is made disastrous in its effect not only in that colony, but in all the other colonies. It would be wise, if possible, to induce all the colonies to come to an understanding on the subject with reference to the framing of a law which would be fair to all parties. If the hon. member will leave the question a little longer, with the view of enabling the various governments to come to some conclusion, then they might refer it to the federal parliament. Under the bill they would have power to refer the question to the federal parliament to deal with, probably on lines which they might be able to suggest. But I do not believe that in the first instance the federal parliament would be likely, in consequence of the inherent difficulty of the subject, to deal with it without being first advised by the various legislatures, or, at any rate, by the various colonies. The question is full of difficulties; the hon. gentleman acknowledges that himself, and I think he would do well to leave it for some little time to the state governments to endeavour to consider the matter among themselves, and to see, in the event of their not being able to legislate unitedly, whether they might not refer the question to the federal parliament.

Mr. PLAYFORD: In a case of this sort, if the insertion of the words can do no harm, and they may do good, why should we hesitate to insert them? We all admit, I imagine, that these industrial troubles do not belong to one colony alone. Labour has federated, and capital has federated, throughout the colonies, and the experience of the late strike shows most unmistakably, or, at all events, shows us in South Australia, that a strike may be ordered from New South Wales and that our people will obey the order; but that as far as our local laws are concerned, we are practically powerless to deal with the question. We all admit, therefore, that the subject, if dealt with at all, will have to be dealt with by the parliament of the commonwealth. Until the parliament of the commonwealth deals with the subject the states are not prevented in any way from dealing with it. I am quite certain that the parliament of the commonwealth will not take any action until public opinion throughout the colonies begins to [start page 785] call upon them to make a law upon the subject, and to endeavour as far as possible to settle these disputes without the loss that is always occasioned to both sides by a strike. The object will be to prevent the possibility of strikes in the future, as far as we possibly can. There will be no harm whatever in inserting the words which the hon. member proposes. It is one of those provisions which will not be exercised until the voice of the community demands that it shall be. For these reasons I shall cheerfully support the amendment.

Mr. KINGSTON: The hon. member, Sir Samuel Griffith, asked me if I propose that the courts of arbitration and conciliation should have power to decide the rate of wages. I do not propose anything of the sort, for I do not propose any details as regards the powers which should be conferred upon the courts. I think that a question of the sort Sir Samuel Griffith asks could be put with equal force for the purpose of securing the rejection of many clauses in the bill. The power is given, for instance, to the federal parliament to legislate in such matters as marriage and divorce. Surely the hon. member might, with the same propriety, ask in what direction it is intended by those responsible for the appearance of that provision in the bill that legislation on those subjects should proceed. That matter will be discussed, no doubt, and decided by the federal parliament when the necessity arises. The simple question now is: shall the federal parliament have power to deal with this question? It is admitted that a power of this kind cannot be exercised by the states. A suggestion is made that the subject may be referred to them in the roundabout way which is proposed in another section of the bill. Why not, if we recognise the necessity of doing something, give the absolute power within the four corners of the bill-a power which, of course, will only be exercised with that discretion which the federal parliament will naturally be supposed to possess, and which will not be exercised before Australian sentiment is ripe for legislation on the subject?

Question-That the words proposed to be added be so added-put. The Committee divided:

Ayes, 12; noes, 25; majority, 13.


Atkinson, Sir Harry Fysh, Mr.

Burgess, Mr. Kingston, Mr.

Cockburn, Dr. Munro, Mr.

Cuthbert, Mr. Playford, Mr.

Deakin, Mr. Russell, Captain

Dibbs, Mr. Smith, Colonel


Baker, Mr. Jennings, Sir Patrick

Barton, Mr. Loton, Mr.

Bird, Mr. Macdonald-Paterson, Mr.

Clark, Mr. Marmion, Mr.

Donaldson, Mr. MCILWRAITH, Sir Thomas

Douglas, Mr. Adye McMillan, Mr.

Downer, Sir John Moore, Mr.

Fitzgerald, Mr. Parkes, Sir Henry

Forrest, Mr. A. Rutledge, Mr.

Forrest, Mr. J. Suttor, Mr.

Gillies, Mr. Thynne, Mr.

Griffith, Sir Samuel Wrixon, Mr.

Hackett, Mr.

Question so resolved in the negative.

Clause, as read, agreed to.

Clause 6. Notwithstanding the provisions of the two last preceding sections, or of any law made by the parliament of the commonwealth in pursuance thereof, the Queen may in any case in which the public interests of the commonwealth, or of any state, or of any other part of the Queen's dominions, are concerned, grant leave to appeal to herself in council against any judgment of the Supreme Court of Australia.

Mr. WRIXON: I beg to move:

That the clause be amended by the emission of the words "in which the public interests of the commonwealth, or of any state, or of any other part of the Queen's dominions are concerned" be omitted.

Letting the clause stand generally, that the Queen may grant leave to appeal. I hope this Convention will not mark the inauguration of a new constitution by cutting us off from the right of appeal to the Queen in England. I believe there is [start page 786] a strong and wide feeling among a large portion of the people of these colonies that they would not like to have that power taken away from them, and if my amendment be agreed to the Privy Council would put the same construction upon the bill as they put upon a similar provision in the Canadian act, allowing appeals only in special cases. That is the desire of us all. I am quite willing that the federal parliament should attach any conditions as regards costs that may be desirable to prevent vexatious litigation, but I hope the Convention will not mark this early stage of our intended inauguration of a, constitution by separating this part of the empire from the right of appeal to the Queen, making it the only part of her Majesty's dominions in that position.

Mr. PLAYFORD. Our own court of appeal will be a court of appeal to the Queen. It will be the Queen's court.

Mr. WRIXON: Our police courts are the Queen's courts; but we are talking of an appeal to the Queen as the head of the empire, and I should be sorry to see this portion of her Majesty's dominions placed in a position, different from that of any other part of the empire, rendering our law liable to the uncertainty necessarily attaching to such a course.

Mr. DIBBS: I think the proposal to establish. an appeal court within these colonies is a mistake, as far as the suitors are concerned, and that the proposal is more the outcome of sentiment than of practical necessity. The idea has been that we should give to our own people-I was about to use the word "subjects," but the time has not yet arrived for that-an appeal court of their own, and that we should take away from them the right of appeal, making them almost foreign subjects. The idea exists in the minds of certain gentlemen that it will cheapen the cost of litigation to the suitor, if we have an appeal court in our own territory. Having had considerable experience in appeals to the Privy Council, I would say that it is cheaper to appeal to the Privy Council, to have a thoroughly unbiased court, a court in which the highest legal talent of the empire ought to be available, for the hearing of cases, than it would be to, appeal to any appellate court which might. be established here. Of course, I hold that, as British subjects, we have the right of appeal to the Queen, and I, therefore, shall support the amendment of the hon. member, Mr. Wrixon. To take away from the people of this country the right of appeal to the throne is to commence to sap the foundations of a union under the Crown, the principle upon which our federation is to be established. If we are to be under the Crown let there be one form of law let there be one set of decisions ruling in every part of the empire. If we are to, carry out what evidently some gentlemen desire-I do not say that I am among them number-having our own appeal court we should have to practically hoist our own flag, and we should then have our own decisions to guide all the courts of the colonies. I believe a majority of hon. members who support the proposal go for the sentiment of the thing rather than for the reality. We shall have certain decisions of the appellate court of the commonwealth of Australia-if that name is to be adhered to-and certain decisions of the Privy Council of England running at the same time within the same empire. There can be only one final appellate court in the empire, and that I believe should be the Privy Council of England. I base that opinion upon considerable experience of the Privy Council and of litigation in the courts of this colony. I maintain that it will be absolutely cheaper to take cases to the Privy Council and settle them there at once, with all the respect due to that great court of appeal, than to establish an appellate court here.

[start page 787] Sir JOHN DOWNER: I do not think the question of expense was so much considered by the committee as the question of having a national court. It was the determination to settle our own affairs amongst ourselves that had much more to do with the question than the incident of expense, which we

thought would probably be lessened, although for the purposes of this discussion I will assume that it will be substantially the same. The chief reason which actuated the committee in coming to this conclusion was that we believed we had reached a stage of national life in Australia in which we were fairly competent to manage our own concerns, not merely political but judicial as well. Whilst we agreed to follow the course which Canada pursued and to allow appeals, the words were general in that case, but they have had a limit placed upon them by the Privy Council in their decisions. We thought it would be well to follow the course which was followed in Canada, adding the limitations which judicial decisions have imposed upon the more general words. Therefore, we are not going beyond what has been done before. Although many of us may think we are doing less than we are disposed to do ourselves, at all events there will be few of us who will not consider we ought to have gone at least as far as we have gone in the bill.

Question-That the words proposed to be omitted stand part of the bill-put. The Committee divided:

Ayes, 19; noes, 17; majority, 2.


Barton, Mr. Jennings, Sir Patrick

Bird, Mr. Kingston, Mr.

Clark, Mr., MCILWRAITH, Sir Thomas

Cockburn, Dr. McMillan, Mr.

Deakin, Mr. Parkes, Sir Henry

Donaldson, Mr. Playford, Mr.

Downer, Sir John Rutledge, Mr.

Fysh, Mr. Smith, Colonel

Grey, Sir George Thynne, Mr.

Griffith, Sir Samuel


Atkinson, Sir Harry Gillies, Mr.

Baker, Mr. Loton, Mr.

Burgess, Mr. Marmion, Mr.

Cuthbert, Mr. Moore, Mr.

Dibbs, Mr. Munro, Mr.

Douglas, Mr. Adye Russell, Captain

Fitzgerald, Mr. Suttor, Mr.

Forrest, Mr. A. Wrixon, Mr.

Forrest, Mr. J.

Question so resolved in the affirmative.

Clause, as read, agreed to.

Clause 7 verbally amended and agreed to.

Clause 8 (Original jurisdiction. Additional original jurisdiction may be conferred).

Sir SAMUEL GRIFFITH: There is a mistake in this clause, which does not express the intention of the drafting committee or of the other committee. The last two lines-

The parliament may confer original jurisdiction on the supreme court of Australia in such other cases as it thinks fit-

read much more widely than was intended. They were intended to be read in connection with the list in the preceding section. Of course within that list it is quite right. There is no reason why the supreme court should not have original jurisdiction in them if parliament agrees to give it.

Mr. WRIXON: Concurrently with the other courts?

Sir SAMUEL GRIFFITH: Yes. I move that the last paragraph be amended to read as follows:-

The parliament may confer original jurisdiction on the supreme court of Australia in such other of the cases enumerated in the last preceding section as it thinks fit.

Amendment agreed to; clause, as amended, agreed to.

Clause 10 (Number of judges) verbally amended and agreed to..

Progress reported.


Motion (by Mr. MCMILLAN) proposed:

That the Convention do now adjourn. [start page 788] Mr. BARTON: Perhaps I may be allowed to explain that I was unavoidably absent when clause 55 of chapter I was dealt with this afternoon. If it is permitted to me to say so I very much regret that I was not present as, having been concerned in the labours of the Constitutional Committee, and having also, I may fairly say, had some share in the drafting of the bill, I do not like it to be supposed that I was deliberately absent on that occasion. I wish to say, therefore, not being entitled by order to give my reasons, that I should most deliberately have supported the clause as it stands in the bill had I been present.

Mr. ABBOTT: I beg to ask you, sir, and the Convention, to excuse me from attendance to-morrow. I have very important business to attend to, and I hope that some other member of the Convention will take my place to-morrow. If it should not be convenient for any hon. member to do that, I will put aside my engagements, although they are very important, and be here to act as Chairman of Committees. I would ask some hon. member to take my place to-morrow.

Hon. MEMBERS: Mr. Barton!

Mr. BARTON: We shall no doubt find a gentleman who will gladly occupy the hon. member's place, but it will be very much better not to decide anything tonight We all have our engagements but I, for one, should be happy to bear my part, and I am sure that Sir John Bray will bear his, and there are other gentlemen of experience in the chair who will also be available.

Question resolved in the affirmative.

Convention adjourned 6.7 p.m.