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1898 Australasian Federation Conference

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[start page 245]


Commonwealth of Australia Bill-Representation of Queensland.

The PRESIDENT took the chair at half-past ten o'clock a.m.


The Convention resolved itself into committee of the whole for the further consideration of the Commonwealth of Australia Bill.

Discussion (adjourned from the previous day) was resumed on sub-section (1) of clause 53 (Exclusive powers of the Parliament), which was as follows:-

The affairs of the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community; but so that this power shall not extend to authorize legislation with respect to the affairs of the aboriginal native race in any state.

Dr. QUICK (Victoria).-I have always been under the impression that this clause embodied, certainly, one of the most valuable powers to be conferred upon the Federal Parliament, and have indicated that view during my federation campaign as a strong argument in favour of federation, inasmuch as this power gives the Federal Parliament control over the immigration of aliens. But the discussion which has taken place upon the matter shows the importance of debate. I think that no time has been wasted in the discussion of sub-section (1), which is worthy of full ventilation. I would like to bring even more closely under the notice of the Drafting Committee the real import and significance of the provision. My honorable friends in the representation of Victoria yesterday drew attention to a point of considerable importance as to the possible effect of this sub-section in preventing the local Legislatures from dealing with the alien question up to a certain point. There can be no doubt as to the desirability of conferring unlimited powers on the Federal Parliament to prevent the introduction of foreign coloured races. It may be thought that that power is conferred on the Federal Parliament under other clauses in the Constitution. This sub-section, as I understand it, is restricted in its operation to people of certain races when they are within the jurisdiction of the Commonwealth. I would like to suggest whether it is wise to withdraw all power and jurisdiction from the Federal Legislature upon such people within certain limits. Sir John Forrest, yesterday, touched upon the fringe of the subject I am discussing when he mentioned that there are certain laws in Western Australia which prevent certain coloured races from having miners' rights, or from going on the gold-fields, or holding hawkers' licences.

Mr. PEACOCK.-There is a similar provision in our Mines Act.

Dr. QUICK.-And in the Victorian Mines Act there is power to insert in the covenants of a mining lease a provision that the employment of Chinese labour shall not be permitted to be a compliance with the labour covenants of the mining law. That is, of course, an important power to be held by any Parliament, and it is a power which is restricted within the territorial limits. It is not proposed in this Constitution to take away from the state Legislatures jurisdiction over mines and minerals. I would, therefore, like the Drafting Committee to consider whether this sub-section, as it stands at present, will not prevent the Parliament of Western Australia from abstaining from granting miners' rights to coloured aliens, and prevent the Parliament of Victoria from continuing to enforce the proviso that the

employment of Chinese labour shall not be a compliance with the labour covenants of the mining law?

Mr. DEAKIN.-Read clause 110 in connexion with that.

Mr. BARTON.-That applies rather to the administration of the laws, I think.

[start page 246] Dr. QUICK.-The clause alluded to by Mr. Deakin says-

A state shall not make or enforce any law abridging any privilege or immunity of citizens of other states of the Commonwealth, nor shall a state deny to any person within its jurisdiction the equal protection of the laws.

It may be that that clause supports the view that the state would not be able to impose disabilities upon coloured aliens.

Mr. KINGSTON.-It goes further.

Mr. HIGGINS.-It has been held under a provision such as this that you cannot cut a Chinaman's pigtail off.

Mr. KINGSTON.-No more you should.

Dr. QUICK.-I will respectfully suggest-Why should the Federal Parliament desire a power, or why should a power-be conferred upon it, of interfering with what is a state right, a power of interfering in the development of the state's mineral, agricultural, or other resources? And why should not the state be able to say what should be a compliance with its own labour covenants? And why should it not impose its own terms and conditions upon the development of its own territorial resources? While I am anxious to equip the Commonwealth with every power necessary for dealing with the invasion of outside coloured races, I do not see why, at the same time, the local Legislatures should not continue to enjoy local state rights within certain limits; and I would suggest to the Drafting Committee to consider whether they could not insert at the end of this clause a provision to meet the case I have described. I am not referring to the exclusive powers of the Federal Parliament. You may, if you like, give certain exclusive powers as to determining the confinement of these races within certain areas, or regulating their admission, or keeping such aliens out altogether. But is not such a power sufficient for all the purposes of the Commonwealth? I would suggest whether the states should not have reserved to them such comparatively minor rights as those which Sir John Forrest has mentioned, and which I have called attention to.

Mr. KINGSTON (South Australia).-I do not know that I am often found disagreeing with my honorable and learned friend (Dr. Quick), but in connexion with this matter I do disagree with him strongly. He puts it that the state is the landlord of the soil of its territory, and has, therefore, a right to dictate as to the terms on which that soil shall be worked.

Mr. DEAKIN.-By its lessees.

Mr. KINGSTON.-By its lessees or any one else. Pushed to a legitimate conclusion his argument would amount to this: That the state might dictate as to the right with which each person could step ashore on to that soil. I do not think the matter should be viewed solely with regard to our dealing with alien races, who will chiefly come within the scope and purview of this sub-section. We ought to deal with the matter not on local or provincial, but on broad Australian lines. I know that in this respect I differ a good deal from many with whom I generally work in sympathy, but the view which I venture to propound is this-that if you do not like these people you should keep them out, but if you

do admit them you should treat them fairly-admit them as citizens entitled to all the rights and privileges of Australian citizenship.

Mr. TRENWITH.-And compel them to observe the same rules as other citizens?

Mr. KINGSTON.-Yes, compel them to observe the same rules as other citizens, but impose no special rules intended for their special injury and to emphasize what some may consider the degradation of their position. Sir, I think that in connexion with this coloured races question we should do whatever we can for the purpose of keeping out coloured races, and I recollect with considerable interest and some pride that I had the pleasure of being associated with Mr. Deakin at the Chinese Conference in 1888, when an Australian policy was agreed to-a policy [start page 247] which had the effect, to a very considerable extent, of limiting the introduction of these coloured people. I think that subsequent events have shown, not only the wisdom of that policy, but also that, if it had a defect, its only defect was in not going sufficiently far.

Mr. DEAKIN.-Hear, hear.

Mr. KINGSTON.-My honorable friend indorses that opinion, and there is no doubt that, in view of our proximity to the crowded millions of the East, we must look very closely into the question as to whether or not restriction should not be replaced by absolute prohibition, in the interests of what is generally and properly known as the white Australian. The matter was considered a couple of years ago-I think it was at another Conference in Sydney-when further legislation was agreed to, and that legislation has been passed by the senior colony and by South Australia, but it has not yet received the Imperial assent. Now, it seems to me that there has been no substantial difference of opinion as to the propriety of dealing with this question as an Australian question, and I trust that in framing federal legislation on the subject we will adhere to that principle, and that we will not encourage the policy of dealings with the coloured races by various provinces on different and varying lines.

Mr. DEAKIN.-The difficulty is as to those we have got here now, you see.

Mr. SYMON.-They are no worse than those who may come in future.

Mr. KINGSTON.-We have got those coloured people who are here now; we have admitted them, and I do trust that we shall treat them fairly. And I have always set my face against special legislation subjecting them to particular disabilities, whether it is, as in one province, by declaring that a solitary Chinaman shall constitute a factory-

Mr. WALKER.-It is disgraceful.

Mr. KINGSTON.-I am not going to say whether it is disgraceful or not. I disagree with it. As I was saying, I have always set my face against special legislation subjecting these coloured immigrants to particular disabilities, whether it is, as in one province, providing that a single Chinaman shall constitute a factory, or whether, as in our colony, it is the prevention of the ownership of mineral leases by Chinamen. I think it is a mistake to emphasize these distinctions. Keep these coloured people out if you do not want them here, but if you admit them and do not want them to be a standing source of embarrassment in connexion with your general government, treat them fairly, and let them have all the rights and privileges of Australian citizenship.

Sir JOHN FORREST.-Would you give them the right to vote?

Mr. KINGSTON.-I do not think we ought to give them the right to vote.

Mr. PEACOCK.-They are here now, and they are naturalized citizens.

Mr. KINGSTON.-Then that is an additional reason for according them the full rights of citizenship, and, as regards not giving them the right to vote, I put it to honorable members that the proper course is to decide that question by Australian legislation, and I should be undoubtedly found supporting a proposal which, as regards future arrivals at the least, would prevent them being admitted to the exercise of the franchise.

Sir JOHN FORREST.-You would not give them all the rights of citizenship, then?

Mr. KINGSTON.-I would not allow them to come here in the hope of exercising those rights, but I trust also that they will be kept out. There is no doubt whatever, it seems to me, that one of the most important subjects that the Federal Parliament will have to deal with as regards the regulation of these coloured immigrants-a subject second only in importance to that question-is the question of the Australian treatment of those immigrants when they are here; and just as I think that every one of those subjects ought to be dealt with by federal legislation, so I think that, only in a secondary [start page 248] degree, the same remark applies to the question of how the coloured people who are here shall be dealt with. The result will be, if one colony is allowed to subject these coloured people to special disabilities, to force them into the other colonies where they are more favoured, but no more wanted. The broad view of the matter, which I venture to adopt, is that it is an Australian question, and should be dealt with by the Federal Parliament, land by the Federal Parliament only. Some question has been raised as to whether or not this power-if conferred on the Federal Parliament in the shape in which we find it in the Bill-will prevent the local Legislatures from dealing with the question pending federal legislation.

Mr. PEACOCK.-That is the whole point.

Mr. KINGSTON.-That is the whole point at issue. My hope is that it may be made perfectly plain that, whilst the local Legislatures can retain, if they please, the benefit of what they have already done, they ought not to interfere further with the matter, after the Federal Parliament is established, but the Federal Parliament should be left to deal with it, and, by being made practically the only body competent to deal with it, should be forced, at an early date, to deal with it, and to deal with it on Australian lines, as broad and fair as possibly may be. I cannot help thinking, however, that if we pass the sub-section in the shape in which we have it before us at the present moment, until the Federal Parliament deals with the matter, the local Legislatures will have jurisdiction to amend their laws, either in the shape of liberalizing them, or of greater stringency towards these coloured races.


Mr. KINGSTON.-Clause 100 has some reference to the matter, but a more important point was the one taken by Mr. Clark, then Attorney-General of Tasmania, and concurred in by Sir Samuel Griffith at the Convention in 1891. Mr. Clark called special attention to the use of the expression-"the people of any race with respect to whom it is deemed necessary to make special laws not applicable to the general community" and he asked-"By whom is it to be deemed necessary?" The answer, of course, is-"By the Federal Parliament." Mr. Clark asked-"Do we know when the Federal Parliament will deem it necessary to make special laws not applicable to the general community?" And the answer is-"Not until the Federal Parliament exercise that power."

Mr. TRENWITH.-But whether the Federal Parliament deem it necessary to make such special laws or not, their power to do so is exclusive.

Mr. KINGSTON.-It is only exclusive in connexion with the question that arises after the declaration by the Federal Parliament that it is necessary to make such special laws.

Sir GEORGE TURNER.-That is too fine to risk this on, anyhow.

Mr. KINGSTON.-I hope it will be made perfectly clear, but in an altogether different direction to that which I think is the view entertained by Sir George Turner. The right honorable gentleman puts it that it is too fine to risk it on that point. I say not only was it the opinion of Mr. Clark, but also of Sir Samuel Griffith, that it was unnecessary, and Mr. Deakin gave in his adhesion to that view. However, let us make it clear. But I hope that we shall make it clear in this direction, that as regards this matter and the treatment of alien races in Australia, both as to their immigration and the terms on which they are permitted to take up their abode amongst us, the Federal Parliament; and no other shall have anything to do with it.

Mr. SYMON (South Australia).-I so strongly sympathize with the broad and generous views expressed by the last speaker that, except that this is a question of very great moment, I should hardly have felt it necessary to occupy the attention of the committee even for the very few [start page 249] seconds I propose to do. This is a very much larger question than one of drafting. It has travelled a long way beyond that stage. In this discussion two points have been raised. One is more or less a matter of drafting-a technical matter-and that is the point which was raised yesterday by my honorable friend (Mr. Deakin) as to the meaning and effect of the word "exclusive," and as to whether this particular provision is not out of place in this series of sub-sections dealing with matters in the exclusive ambit of the Federal Parliament-whether it ought not more properly be placed in clause 52, and whether if we retain it where it is it may not have the effect of creating a sort of interval between the coming into force of the Federal Constitution and the enactment of a federal law dealing with the subject of this sub-section. That, I think, is substantially the point which has been put from the first aspect-that is to say, when this Federal Constitution comes into force it simply operates as a barrier to all legislation by repeal or alteration an the part of a state with regard to any existing laws dealing with people of the nationalities which are referred to, although circumstances may arise to render it absolutely necessary that some alteration should be made. That is a very serious and a very important question, and, although I am disposed to think if this sub-section is retained where it is under these exclusive provisions, the effect will be to erect such a barrier as I have indicated, still it may be open to doubt as to whether that is the effect of the word "exclusive." But to solve the matter, and to save it from all doubt, I agree with the honorable member (Mr. Deakin) that it would be very much better to place this provision in clause 52, so that until the Federal Parliament does legislate on the subject the existing laws of the states shall prevail, and that if the states should find it necessary to alter or modify or change those laws in any way they shall be at perfect liberty to do so. That, at any rate, would be consistent; it would be proper; and it would save the hiatus of legislation which might otherwise occur, and conserve to the states that right which they now possess, and which it might be absolutely necessary, in their own interest, they should exercise. But the second question is one of much wider and-more far-reaching consequences. It is one of great constitutional substance. It is whether it is proper at all that this power, described in this sub-section, should be conferred on the Federal Parliament.

Mr. DEAKIN.-Solely.

Mr. SYMON.-In clause 52 we have given to the Federal Parliament the power of dealing absolutely with immigration. If we have given that power, then incidental to that power they will have an exclusive jurisdiction as to the status and citizenship of people who come into this country. If, therefore, the Federal Parliament are to have this entire control of the citizenship of the nation, then they have a right to say who shall be admitted to that citizenship and who shall be excluded, and they must also have the power to define the terms of that citizenship. They may say that they will admit the coloured races-those whom we describe, as aliens-to the full advantage of the citizenship of Australia. They may give a limited citizenship if they like. They may impose any terms or conditions, or they may, I apprehend, admit these people, and confer on the states themselves the right of regulating the control within the boundaries of the particular states. There may-and this was a point which was put by my right honorable friend (Sir John Forrest) yesterday, at least as I understood him-have to be varying laws, according to the different degrees of latitude in the various states, which may require differentiation in relation to these particular people. Well, the Federal Parliament would have perfect power to confer on the state the right to discriminate in that way if it chooses; but it seems to me, in

common with the last speaker, that it is the federal authority [start page 250] alone which has to deal with and define and control the national citizenship.

Mr. DEAKIN.-Is it to do that positively as you propose, or negatively as we propose? That is the difference between us. We do not object; but we say that that control should be negative-that is to say, that until the Federal Parliament legislates, for instance, in regard to the employment of Chinamen in mines, the local laws ought to operate now and hereafter. It is only a difference between positive and negative.

Mr. DOUGLAS.-The fight is over a shadow.

Mr. SYMON.-I think, as my honorable friend puts it, the fight is over a shadow; there is really no substantial difference between us. It appears to me that we have been under some misapprehension, and the very pointed address to which we have just listened has been founded on an assumption of difficulty which has not been suggested. What I understood my honorable friend to desire was, that the power of regulating these coloured races, to use the expression which is best understood, shall be left entirely with the states.


Mr. TRENWITH.-Only until the Federal Parliament deals with it.

Mr. DEAKIN.-Negatively, instead of positively.

Mr. SYMON.-As at present advised, I see no particular objection to the proposal to leave it with the states until the Federal Parliament defines what that citizenship shall be. Otherwise, of course, the result might be that you would neutralize absolutely the power which you are giving to the Federal Parliament, because, if you left it to the state to say how these people should be employed, under what conditions they should be licensed in particular vocations, you might defeat your federal legislation by starving the people you admit.

Sir GEORGE TURNER.-And the Federal Parliament can always pass a law overruling the state law if that law is a bad one.

Mr. SYMON.-What you want to do is to maintain your existing laws, with the power, of course, till the Federal Parliament legislates, of altering them as you please; but until the Federal Parliament legislates with regard to the admission of these people, and the quality of the citizenship which they are to possess-whether it is full and free like our own, or more limited; and until they also interfere with your internal regulation of affairs with these people your laws are to operate.

Mr. DEAKIN.-And any amendment of them.

Mr. SYMON.-If, in opposition to the view which was just taken, you have the power, in the interim between the establishment of the Federal Constitution and the passing of the federal law, to alter them, those alterations will have the same effect as existing legislation on the subject. Therefore, it seems to me, if that is the whole matter in dispute, it does not raise quite so large a question in substance as I anticipated. I thought, from the view which was expressed yesterday, no doubt from my misunderstanding it, that the whole question of the separate control of the states over the alien races, once admitted, was to be reserved to the states, and I emphatically concur in the speech which we have just listened to. It is monstrous to put a brand on these people when you admit them. It is degrading to us and our citizenship to do such a thing. If we say they are fit to be admitted amongst us, we ought not to degrade them by putting on them a brand of inferiority.

Mr. HOWE (South Australia).-I have listened with great pleasure indeed to the speeches of the two last speakers. It is so very seldom that they are in accord with each other on questions of this

kind, that I could not help marvelling that they should come together on a question of this magnitude. The honorable member (Mr. Symon said it was monstrous, for a civilized community like the Australians, to place a brand of degradation upon those alien races once we admit them. I think our first [start page 251] duty is to consider the welfare of our own kindred. Do you ever find British labour going to these eastern countries and competing with the labour there? Certainly not.

Mr. WALKER.-Engineers go there from our country.

Mr. HOWE.-Simply because those races have no engineers of their own. We send capital into those countries. We benefit them in that way, and we do not take hordes of people to compete with the labour of eastern countries. I have no objection to treat them fairly well when they are in Australia, but the Government ought not to go out of its way to grant them licences when there is a power of restrictions and when the Government can refuse any one a licence. Why should we grant them mineral licences to compete with our miners on gold-fields, and hawkers' licences to compete with our Australian hawkers?

The CHAIRMAN.-I would ask the honorable member if he thinks his remarks are strictly relevant as to which body should have the power to deal with this matter?

Mr. HOWE.-I am coming to that. If this law be passed as proposed, I am in accord with the honorable member (Mr. Deakin) that the federal authorities should have supreme power, and that the laws in the states should be operative until the federal law is passed. I am quite in accord with the Victorian members who say that those local laws should remain in full force and vigour until a new law is passed by the federal authority. I have no fear that the law passed by the Federal Parliament of Australia will be one that will be less exclusive, as against these alien races, than any law obtaining in any state at present.

Mr. WALKER.-Do you think they will pass a more exclusive Act?

Mr. HOWE.-Yes; I think the cry throughout Australia will be our first duty is to ourselves, and that we should as far as possible make Australia a home for Australians and the British race alone. It is not our duty even to go out of our way to create competition between the aliens residing in our midst at the present time against our own flesh and blood. I shall support the contention advocated with so much force and ability by the Victorian members, as I consider that the welfare of the colonies, as against alien cheap labour, depends upon the local laws being maintained in full force and vigour until a federal law is passed.

Mr. MCMILLAN (New South Wales).-I do not intend to extend the debate, and therefore I shall only say a word or two. I have not been under any misapprehension with regard to the real issue before us. I am inclined now to alter my mind, and to say that this sub-section ought to be included in the 52nd clause, and for a reason that perhaps has not struck some honorable members up to the present time. I hold that the placing of this subject in the Bill as an exclusive power restricts, to some extent, the discretion of the Federal Parliament, because, in the earlier stage of our federation, it may be considered right not to interfere too much with the autonomous powers of the different states. It might be a wise discretion to leave everything exactly as it is for some years to come. If the states have not over-reached what is fair to the position of a citizen pure and simple, then, on broad grounds, the Federal Parliament may think it best in the early stages of federation to do nothing at all; whereas, if you make this an absolutely exclusive power, it is more or less a direction that, at the very earliest moment, a uniform law shall prevail throughout the whole continent. It seems to me, therefore, that on the whole it would be better to include it in the other concurrent powers, leaving the Federal Parliament, as I think we ought in all matters, the fullest possible discretion to deal with matters according to their own views.

Dr. COCKBURN (South Australia).-I quite agree with the contention brought [start page 252] forward by the honorable member (Mr. Deakin) yesterday that this ought to be a concurrent, and not

an exclusive power. It is a fair question for the states to legislate upon until legislation inconsistent with their action is introduced by the Federal Parliament. I may say it is a matter which is beyond the stage of theory. Special legislation, as touching alien races, became, in South Australia, a matter of great importance in administration. In the Northern Territory of South Australia there is a large preponderance of Chinese, as against the white population. It was found that the Chinese themselves were not prospectors, but they followed the British prospectors, shepherded them, and as soon as any discovery was made by one or two enterprising men of our own race, the Chinese, who would not undergo the risks themselves, came down upon the mine and destroyed all possibility of its being worked by our own people.

Mr. HIGGINS.-Would not the whites murder them?

Dr. COCKBURN.-There were only a few whites, and the murder might turn out the wrong way. For years and years the people in the Northern Territory clamoured to Parliament for the prevention of these occurrences. For years Parliament turned a deaf ear to their entreaties, but at last an Act was passed precluding the Chinese from going on to a gold-field until a certain number of years after its proclamation. I understand that has placed the matter on a satisfactory footing, and that the Act has worked very well. It seems to me this is a power which might require to be local in its exercise. Not only should the states have power to legislate in the interim until the formation of the Commonwealth, but afterwards until the Federal Parliament chooses to pass a law, and even after that so long as the state law is not inconsistent with the federal law on the subject. Of course, the Federal Parliament must have power to legislate on this subject. That is an absolute national necessity. But until the Federal Parliament chooses to legislate in such a way as to over-ride the state law, certainly the states should have this power. It is a pure question of state rights and local government. It would be disastrous in a huge continent like this, where conditions vary so much, to make it necessary for any particular state to get the ear of the Federal Parliament before it could get legislation in this direction. I have pointed out how exceedingly difficult it was, even within the limits of South Australia, for a distant part of that territory to get the ear of Parliament. How much greater will be the difficulty to get the ear of the Federal Parliament on a matter which perhaps only concerns one particular part of a particular state. The states themselves should have the power to legislate in this matter as long as their legislation is not inconsistent with the federal legislation. I quite agree that with regard to immigration the Federal Parliament must have the whole power, so as to be able to restrict undesirable immigrants; but it is not only a question of keeping out alien races. We have them with us. As I have said, in our Northern Territory we have a preponderating population of Chinese. I can quite well see that other problems, not perhaps quite identical with that of keeping the Chinese off new goldfields, but yet problems of a similar character, may arise. Therefore, it is not sufficient that we should retain the right of our own laws as they stand, but it is necessary that the states should have the right to take the initiative in any matter which might have a local bearing, and which might not concern the whole of Australia.

Mr. DEAKIN (Victoria).-In order to bring this matter to a head, I intend to move an amendment. I have consulted the Drafting Committee as to its form, and beg to move-

That the words "The affairs of," first line sub-section (1),be omitted.

[start page 253] Mr. BARTON.-I have no objection to taking it that way.

Mr. DEAKIN.-I think it must now be perfectly clear that what we desire is, not to deprive, the Federal Parliament of its paramount power in every respect in regard to any dealings with the races referred to, but to leave to the several states, until the Federal Parliament legislates upon the alien question, the operation of all legislation already passed, and the the right to legislate in the future until the Federal Parliament thinks fit to supersede it by specific legislation. For instance, the Federal Parliament might well pass a general law applying to these races without making any reference to their employment as miners or hawkers, and any state legislation in regard to those occupations which

might be in existence would continue, or now legislation regarding them might be introduced. When the Federal Parliament chooses to make regulations in regard to the employment of aliens as hawkers and miners, the state legislation will cease to have effect. The honorable and learned member (Mr. Symon) said-“Hand to the Federal Parliament all powers connected with aliens, and allow them to give back certain powers to the state." We say-“Instead of taking these powers from the states and giving them back again, let us leave them with the states until the Federal Parliament chooses to assume them."

Sir JOHN DOWNER (South Australia).-I do not think it makes any substantial difference whether you put this provision in clause 52, or leave it where it is. The Federal Parliament has first to say what races it is: necessary to make regulations about.

Mr. ISAACS.-That is giving a rather limited meaning to the words "deemed necessary."

Sir JOHN DOWNER.-There must be some body which deems it necessary, and the only body to which the words can refer is the Commonwealth Parliament. What very substantial difference does it make whether we leave the provision as it stands or put it into clause 52? True, if the provision is left where it stands, the Federal Parliament will have exclusive power in connexion with this matter; but that body will only have exclusive power when it chooses to exercise it. It is only when the Federal Parliament has passed legislation dealing with the people about whom regulations are to be made that this exclusive power will have arisen. The only matter for the committee to consider is as to the expediency of leaving the provision here or of putting; it into clause 52. Wherever it is, it will, upon the passing of the Constitution, operate as an intimation to the Federal Parliament that this is a matter of national import, upon which they are expected to legislate. Once within the Commonwealth citizens should be able to go freely from one state to another; there should be no lines of differentiation between states. If races are admitted into one state, and are not free to go into another, the inconveniences of administration, especially on the borders, will be very great. It has been thought well that there should be a uniform law throughout Australia in respect to the citizens of Australia, and it was considered that this provision should be put into a separate clause giving exclusive powers, in order to emphasize the fact that the Federal Parliament should legislate upon this matter. In my opinion, whether you put the provision into clause 52, or leave it where it is, its substantial legislative effect will be the same. As to the meaning of the words, "the affairs of the people of any race with respect to whom it is deemed necessary," in my opinion it is the Federal Parliament who must deem it necessary.

Mr. ISAACS.-What is the meaning of the statement that the state cannot legislate for the whole general community?

Mr. BARTON.-That is by way of description. A law made by the state does not apply to the general community.

[start page 254] Sir JOHN DOWNER.-My argument is that “deemed necessary” means deemed necessary by the Parliament of the Commonwealth. Assuming that I am right, I ask to whom does this clause extend? The persons named by an Act of the Commonwealth Parliament. When the Commonwealth Parliament deals with this subject, its legislation will over-ride any local legislation, no matter whether you put the provision in clause 52 or leave it in clause 53. What the representatives from Victoria want is exactly what is provided here, but the provision is put where it is for the purposes of extra emphasis, and to indicate to the Federal Parliament that they are expected to make over-riding and general legislation in regard to this vital question. I think honorable members are, almost without exception, strongly of opinion that there should be federal legislation upon this matter, and I therefore believe that it will meet the wishes of honorable members if we leave the provision exactly where it is, as a means of hurrying up the Federal Parliament and causing it to legislate in this matter as soon as possible.

Mr. WALKER (New South Wales).-I am in perfect accord with much that has been said by the right honorable member (Mr. Kingston), the honorable and learned member (Mr. Symon), and the honorable member (Mr. McMillan); but I must admit that I see great force in the remarks of Sir John Downer. If we wish to compel the Federal Parliament to legislate upon this matter I think we had better leave the provision where it stands. I shall not take up the time of the Convention by going into the Chinese question, but before the election I was waited upon by a deputation of Chinese, who inquired what I thought of the possibilities of special legislation in regard to aliens. They asked me this question-"Once a Chinaman has paid the poll tax, and has entered the Federation, will he be free to go from one end of the colonies to the other?" I replied that I could not possibly prophesy, but that I thought it likely that he would be able to go all over Australia.

Mr. DEAKIN.-Hear, hear.

Mr. WALKER.-I am glad to hear from Mr. Deakin that the intention is that the local legislation shall after a time be absorbed by the federal. But unless we leave this power under clause 53, the local legislation may go on for an indefinite period. I, for one, cannot understand why, when once a man has paid the poll tax, or whatever charge is imposed, and has been admitted to Australia, he should be treated differently from others. With regard to the poll tax, the view taken by the Chinamen in Sydney amused me. They said-"We do not ask you to vote against the poll tax; those of us who are already here are quite satisfied with the law as it stands."

Mr. GLYNN (South Australia).-I desire to call the attention of the leader of the Convention to an apparent vagueness in the word "exclusive," to which reference has not yet been made. The word "exclusive," no matter at what time the power arises, whether on the coming into being of the Commonwealth, or the exercise of the power by the Federal Parliament, may mean, and I believe does mean, that the power of the state to legislate ceases. On the question of whether the exclusive power under this provision comes into being with the establishment of the Commonwealth, I would call the attention of the leader of the Convention to clause 84. That clause seems to indicate that this exclusive power arises the moment an Act is passed. It speaks of the exclusive power of enforcing customs duties being vested in the Federal Parliament, but the second paragraph says-

But this exclusive power shall not come into force until uniform duties of customs have been imposed by the Parliament.

It would appear that without that limitation the exclusive power would come into force at once, and the position would be as stated by the Victorian representatives. If you pass this clause as it [start page 255] stands the state could no longer legislate with regard to Chinese.

Mr. BARTON.-If the exclusive power is given without any restriction, I think it would arise immediately on the establishment of the Commonwealth.

Mr. GLYNN.-Having regard to the wording of clause 84, I think that is doubtful.

Mr. BARTON.-That is a special case.

Mr. HIGGINS.-Clause 84 was intended to mean that the power referred to should not be exclusive until uniform duties of customs had been imposed.

Mr. BARRON.-There is no exclusive power for a period of two years, but by a proviso the power becomes exclusive at the end of that time. Where there is no such proviso the exclusive power must operate, at any rate, from the date of the election of the Federal Legislature.

Mr. GLYNN.-There seems to be some doubt as to whether the exclusive power arises upon the establishment of the Commonwealth or on the exercise of the power of legislation. The doubt seems to be removed by clause 84. It is said that if we put this provision in clause 52 the exclusive power

may be postponed until legislation takes place. But may you not then have a concurrent power, and may not the competence of the local Legislature to legislate in the matter be continued as long as the legislation is not in contradiction of federal legislation?

Mr. DEAKIN.-That is the point.

Mr. GLYNN.-Yes, and there is still a vagueness in the word "exclusive." If it is doubtful whether the exclusive power commences with the foundation of the Commonwealth, and if it is possible that it may only come into being on the passing of legislation, may it not still be said that on the passing of exclusive legislation the power of the local Parliaments to legislate is extinguished, but that on the passing of concurrent legislation that power does not cease?

Mr. REID (New South Wales).-I think that enough has now been said on this subject by honorable members both sides of the chamber, and I have only a very few remarks to offer. It appears that if the sub-section remains where it is state laws will be valid until federal legislation, but the states will not be able to alter or improve those laws during the possibly long interval between federation and federal legislation. Under these circumstances, as we leave to the states for an indefinite time the power of maintaining the laws they have, we should grant to them the power of improving those laws. It would recommend the Constitution more to a large number of persons if we put the sub-section in clause 52, thus enabling each state to legislate on this matter until the Federal Parliament comes in and legislates for all.

Question-That the words "the affairs of" proposed to be omitted stand part of the sub-section-put.

The committee divided-

Ayes ... ... ... ... 10

Noes ... ... ... ... 35

Majority for the amendment 25


Downer, Sir J.W. Moore, W.

Fysh, Sir P.0. O'Connor, R.E.

Grant, C.H. Walker, J.T.

Holder, F W.

James, W.H. Teller.

Kingston, C.C. Barton, E.


Abbott, Sir J.P. Henry, J.

Berry, Sir G. Higgins, H.B.

Braddon, Sir E.N.C. Howe, J.H.

Briggs, H. Isaacs, I.A.

Brown, N.J. Leake, G.

Carruthers, J.H. Lee Steers, Sir J.G.

Clarke, M.J. Lewis, N.E.

Cockburn, Dr. J.A. McMillan, W.

Crowder, F.T. Peacock, A.J.

Dobson, H. Quick, Dr. J.

Douglas, A. Reid, G.H.

Forrest, Sir J. Solomon, V.L.

Fraser, S. Symon, J.H.

Glynn, P.M. Trenwith, W.A.

Gordon, J.H. Turner, Sir G.

Hackett, J.W. Venn, H.W.

Hassell, A.Y. Teller.

Henning, A.H. Deakin, A.

Question so resolved in the negative.

[start page 256] Mr. BARTON (New South Wales).-I beg to move that all the rest of the sub-section be omitted with a view to its being transferred, in a shorter form I hope, to clause 52.

The amendment was agreed to.

Sub-section (2).-The Government of any territory which by the surrender of any state or states and the acceptance of the Commonwealth becomes the seat of government of the Commonwealth, and the exercise of like authority over all places acquired by the Commonwealth, with the consent of the state in which such places are situate, for the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for any other purposes of general concern.

Mr. BARTON (New South Wales).-As to this sub-section, there are one or two matters which I should like to point out to the committee, and then leave it to them to say if they are matters of drafting or matters of substance. I think myself that they do partake of substance. This is the sub-section which relates to an exclusive power to be given to the Commonwealth to deal with territory or certain pieces of land required for Commonwealth purposes, the territory being for the seat of government, and other pieces of land being for the construction of forts, magazines, arsenals, dockyards, quarantine stations or for any other purposes of general concern. Now there is no necessity, I take it, for the words in the first, second, and third lines of the sub-section, "by the surrender of any state or states and the acceptance of the Commonwealth," because they are provided for by clause 105, which is a special clause providing for the surrender of territory by a state and its acceptance by the Commonwealth. Then, with reference to the second, the parenthetical part, of the subsection, to be found in the words "with the consent of the state in which such places are situate," I

think these might also be well left out. This is not a clause which deals in any way with the powers to acquire land, whether it is the acquisition of land for the seat of government or the acquisition of land for an arsenal, &c.; and therefore this kind of expression is not required. I think, therefore, that both these portions of the sub-section should go out, one being already provided for, and as to the other, it should be provided for, either in a separate clause or by some provision such as I suggested in clause 52, which would apply equally to the acquisition of land by the consent of the state, or to such compulsory acquisition as might be justified by any law. I take it that this clause is not the place for either of those provisions, and, apart from questions of drafting, these words unnecessarily encumber a portion of the Bill which deals only with powers to be given by the Commonwealth to itself by its own legislation.

Mr. ISAACS.-Is not the whole gist of the matter the consent?

Mr. BARTON.-No; we must give the Commonwealth the exclusive power to govern territory which may become the seat of government. The Commonwealth may not think fit to acquire or accept the surrender of any territory for the seat of government; it may either follow the precedent of Canada, or it may acquire a piece of territory for the seat of government and federalize that.

Mr. REID.-Once it is federal territory won't all the powers of legislative authority be implied?

Mr. DEAKIN.-Look at clause 115.

Mr. BARTON.-I have clause 115 in my mind. I do not think you can well do without giving power of this kind in this part of the Bill. Clause 115 refers to making laws for the provisional administration and government of any territory surrendered by any State to the Commonwealth, and that applies more generally.

Mr. DEAKIN.-Ought not that provision to be in sub-section (2) of this clause?

Mr. BARTON.-I think not. It applies more generally to acquisitions of territory, which may become territories under that [start page 257] name, and, therefore, be subject to that kind of legislation which precedes their admission as states. It does not refer to a piece of territory for the seat of government, but to territories in the general sense of the word. This sub-section applies only in the more limited sense of the term-to land which may or may not be required for the seat of government. As to that, I think it is desirable that there should be an exclusive power given at once in express terms, but what I object to in the sub-section is that it imports words with reference to the mode of acquisition which may, perchance, be thought to have an enacting effect, and do not find an appropriate place in a clause of this kind. At any rate, I will move, in the first place-

That the words "by the surrender of any state or states and the acceptance of the Commonwealth" be omitted.

Mr. DEAKIN (Victoria).-One point I wish to put to the leader of the Convention has partly been anticipated, but not wholly. This clause-clause 53-defines exclusive powers which are given to the Parliament, and a later clause, clause 115, to which the leader of the Convention has alluded, refers also to an exclusive power of legislation which is to be possessed by the Federal Parliament for the provisional government of territories, or, as they have been happily termed, embryo states. What I am at a loss to discover is why two clauses should be needed or placed so far apart. Should not clause 115, as the power of legislation there conveyed is an exclusive power, be included in clause 53, where the exclusive powers are supposed to be found, and not be relegated to another portion of the Bill, where, it seems to me, those powers are at all events not equally in place?

Mr. BARTON.-It was thought advisable to leave that provision regarding territories where it is-under the head of "New States"-because it refers particularly to that kind of territory which afterwards develops into a new state.

Mr. DEAKIN.-Yes, but it is an exclusive power, and might as well be placed in the clause relating to exclusive powers.

Mr. BARTON.-Is it not logically in better place where it is?

Mr. DEAKIN.-It is logical where it is, and it would also be logical if included in clause 53. However that is a question for the Drafting Committee. I would also ask is the word "territory" in this second sub-section the proper word to use, inasmuch as "territory" has a specific meaning based upon American experience, as indicated by clause 105 and clause 115? Would it not be better to substitute another term, say, "area" or "part of state"?

Dr. COCKBURN (South Australia).-I would like to be quite sure that in making any improvements in drafting we do not really make any important alteration in substance.

Mr. ISAACS.-There is an important alteration; it may be right, but it is important.

Dr. COCKBURN.-I think there is. It is quite right that the Federal Parliament should have no power without the consent of the state concerned to take territory for its capital, for example. I think the consent of the state should be required in that case, although in most cases I do not think there would be very much trouble about it.

Mr. BARTON.-If you refer to clause 105, you will see that it can only be done with the consent of the state.

Dr. COCKBURN.-On the other hand, Sydney might object to have her harbour and 10 miles roundabout taken away by the Federal Parliament, and its administration withdrawn from the local Government.

Mr. BARTON.-Clause 105 is quite clear on that point.

Dr. COCKBURN.-I would like to be sure of that. Would there not be some right of pre-eminent powers in the Federal Parliament, unless it was restricted by this Act, to take any land anywhere it chose?

Mr. ISAACS.-Yes; so there ought to be.

[start page 258] Dr. COCKBURN.-I do not think there ought to be. Whether or not there ought to be is a matter for debate and for settlement by this Convention as a question of principle, and not as a mere matter of wording. Now, take the second part of the sub-section, in which power is given with the consent of the state for the construction, say, of a quarantine station. I question very much whether the power to establish such a station as a leper station, for example, ought to be given to the Federal Parliament without having to consult the wishes of the state in which it is proposed to establish such an institution. The Federal Parliament will be a distant body, and it may not be exactly apprised of all the local conditions. It may want to establish a leper station in some part of Australia where its establishment would be most disastrous to the interests of the communities in the vicinity, which ought, I think, to have a voice in a matter of this sort. These words are put in to make it abundantly clear that the federal capital shall be chosen only with the consent of the state concerned, which consent would, of course, be given in most cases. I should like to have the matter I have referred to made perfectly clear. It is open to doubt at present, I think, whether the Federal Parliament will have power to take any land for the purposes of government without the consent of the state concerned. I do not think the Federal Parliament should have such a power, and I should be sorry to see it have such a power by the mere insertion of certain words which were not intended to have that meaning. I

should like this committee to be clear as to whether or not it is intended that the Federal Parliament should have power to take land from any state without the consent of the state.

Mr. O’CONNOR (New South Wales).-I think the honorable member who has last spoken is quite right; but there is a great distinction between the two classes of matters dealt with in this sub-section. I think that the seat of government of the Commonwealth ought to be in quite a different position to such matters as the construction of forts, magazines, arsenals, dockyards, and so on. Dr. Cockburn will recollect that there is no such power for the acquisition of land for the ordinary public purposes of the Commonwealth.

Dr. COCKBURN.-Might not the power be included in the general powers of sub-section (37)?

Mr. O’CONNOR.-No. The only powers that can be held to be given are those which are expressly given. It will be wise, later on, to add a clause which I think the Convention will see the advisability of adding, restricting the power to acquire land to acquisition for the public purposes of the Commonwealth; and I think it should then be made very clear that no power is given in that clause to acquire land for a federal capital without the consent of the state interested. Because it is quite clear, from the nature of things, that it is quite impossible that a power of that kind could be carried out without such an amount of friction and difficulty as might lead to a great deal of trouble.

Mr. HIGGINS.-Why should not the Federal Parliament buy land from a private owner for the purpose of an arsenal without the consent of the state?

Mr. O’CONNOR.-Exactly so. I do not think the honorable member apprehends what I am saying. I admit that for all such purposes the Commonwealth would have the power either to purchase or to acquire compulsorily on fair terms.

Mr. HIGGINS.-Without the consent of the state?

Mr. O’CONNOR.-Undoubtedly; because in regard to defence there should be a paramount power for the Commonwealth to act as might be thought necessary, and there should be a similar power with regard to quarantine and other matters which are of general concern. But with regard to the acquisition of a piece of land for the seat of government, which must [start page 259] embrace a large area and be an exceedingly important matter for the state in which it is situated, the Commonwealth should not have power to obtain such land without the consent of the state. That can be dealt with when we are dealing with the general clause, giving power to acquire land for the use of the state.

Mr. HIGGINS.-Does not clause 105 answer that objection?

Mr. O’CONNOR.-No; that is simply a permissive power to the Parliament of the state to surrender any portion of its territory.

Mr. ISAACS.-And saying what shall happen if they do.

Mr. O’CONNOR.-Quite so; but that clause does not deal with the question as to whether the Commonwealth may acquire land for any purpose.

Mr. SYMON.-Is that power of the state necessary in this Constitution at all?

Mr. O’CONNOR.-I do not know that it is.

Mr. SYMON.-I think it is an interference.

Mr. O’CONNOR.-Of course the state can deal with its own territory, except that when it does surrender land for the purpose of the Commonwealth, that land will, according to the latter part of

clause 105, "be subject to the exclusive jurisdiction of the Commonwealth." That may be necessary. The state may have no power to give up exclusive jurisdiction over any portion of its territory, and it is just as well to clear that up. What I rose to point out on this matter was that in dealing with the question of the acquisition of land, the point raised by Dr. Cockburn should be considered. I do not think that the matter is affected one way or the other by the words which are the subject of the present amendment, because all territory will be acquired lawfully under the Constitution, and it is territory acquired in that way which is dealt with under this sub-section. This is not the proper place to indicate how the property is to be acquired. That matter must be dealt with by another place; so that it does not matter whether the words, "by the surrender of any state or states and the acceptance of the Commonwealth," are here or not. I think, as a matter of logical arrangement and drafting, all that need be dealt with here is the matter of handing over, and we can deal with how the territory should be handed over in some other way.

Mr. BARTON (New South Wales).-It has occurred to me since I previously spoke that there was a consideration which might make it wise not to carry this amendment now. Apart from other questions which have been raised, I think there is a question of construction which should suggest to us not to make the amendment at present. It is plain that the Commonwealth should have the power of exclusive government of any territory taken over for the purpose of government, when it becomes federal territory. But suppose the Commonwealth follows Canada, and the seat of government does not become a federal district, such as Washington has become in the United States, then the ordinary power of local Government would exist with regard to that place.

Mr. ISAACS.-Including the local laws with regard to crime.

Mr. BARTON.-Yes, police matters would be included. If the Commonwealth undertakes the government of a piece of country only 10 miles square, it must completely govern that country, including the establishment of its own force of police. If it follow the Canadian precedent, the ordinary operations of provincial Government subsist there, and it is only the exclusive powers of Government which are exercised. If we leave out these words, there might be implied a power to assume the whole government in the place which might be made the seat of Federal Government, whilst without an authorization of that sort it would not be necessary for the Commonwealth to assume governing power over it all. The original provisions of the Bill would appear at first [start page 260] sight to be probably wiser than the suggestion made, which confines a power of exclusive government to any place which becomes the seat of government. So that, subject to what any honorable member may say, I feel inclined to withdraw the amendment, at any rate for the present.

Mr. ISAACS (Victoria).-I think the leader of the Convention is right in withdrawing this amendment. I will point out why. We have now reached a subject which is full of consequence to us all, move especially in respect to one or two points with which Mr. O'Connor dealt. This sub-section is to a large extent based upon the American Constitution, Article 1, section 8, clause 17, and the object of giving this exclusive jurisdiction to certain limited cases, namely, in the case of territory acquired by the Commonwealth with the consent of the state, is very plain. There is, no doubt, in the first place, that the United States Government is, and the Commonwealth Government here will be, a Government of limited, of enumerated powers; but as to these powers, the Commonwealth Government will be supreme, and for the purposes of these powers-for everything necessary and incidental to them-it will be unlimited in its acquisition of means to carry out those powers.

Mr. WALKER.-Yes, by sub-section (37) of clause 52.

Mr. ISAACS.-And even independent of that provision. It has been held over and over again in the United States that it is one of the attributes of sovereignty that the Supreme Government shall be unfettered in carrying out the powers intrusted to it, and for the purpose of carrying out those powers it has the right to acquire land compulsorily. No express power is given in the United States Constitution, and the Supreme Court of that country has held that no express language is necessary.

That power was exercised for the first time, I think, in 1875, but it has since been exercised, beyond all doubt, on several occasions.

Mr. REID.-For what purposes?

Mr. ISAACS.-For public purposes-only for the purposes committed to it by the Constitution.

Mr. HIGGINS.-In the Constitution of the United States there is a general power given for all purposes incidental.

Mr. ISAACS.-Oh, the same as we have here.

Mr. KINGSTON.-Is not the supremacy of the United States Government a little different from the supremacy of our proposed Federal Government?

Mr. ISAACS.-Not in this respect. The supremacy, as far as the powers committed to it are concerned, would, in this respect, I apprehend, be exactly the same as the Supremacy of our Commonwealth Government in relation to its powers. In the case of Kohl v. United States, which was decided in 1875, on this very question of the right of the United States Government to compulsorily take property within the state for its public purposes, the court said this:-

It has not been seriously contended during the argument that the United States Government is without power to appropriate lands or other property within the states for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the General Government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories, and arsenals, for navy yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses; If the right to acquire property for such uses may be made a barren right by the unwillingness of property holders to sell, or by the action of a state prohibiting a sale to the Federal Government, the constitutional grants of power may he rendered nugatory, and the Government is dependent for its practical existence upon the will of a state, or even upon that of a private citizen. This cannot be. No one doubts the existence in the state Governments of the right of eminent domain-a right distinct from and paramount [start page 261] to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised, though the lands are not held by grant from the Government, either mediate'y or immediately, and independent of the consideration whether they would escheat to the Government in case of a failure of heirs. The right is the offspring of political necessity; and it is inseparable from sovereignty. unless denied to it by its fundamental law. Put it is no more necessary for the exercise of the powers of a state Government than it is for the exercise of the conceded powers of the Federal Government. That Government is as sovereign within its sphere as the states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as fall and complete as is the power of the states over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder.

Then the court went on to say-

But, if the right of eminent domain exists in the Federal Government, it is a right which may be exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution.

The whole judgment proceeds in that way. It has been followed in several cases, and I think it has been laid down more than once in express terms that, for the purpose of carrying out the powers expressly given to the federal authority in the Constitution, the right of eminent domain is an essential

attribute, and therefore I do not entertain the slightest doubt that, as in that case, and as in several other cases, the United States Government has, even without the consent of the state, taken land so far as it was necessary for the exercise of its public duties, we should have the same right here. I will now proceed to show the meaning of this sub-section. This sub-section does not say that the Federal Government is to have the power to take that land. It assumes that the Federal Government has that power, but when the Government does take land, compulsorily or by purchase, in a state as its possession, it takes that land certainly by virtue of its sovereign power of eminent domain, that is, the highest dominion. But it does not hold that land as sovereign, it holds the land as proprietor. Now, where it holds the land merely as proprietor, without the consent of the state being given to it, it is quite plain that the jurisdiction of the state should run, except, of course, so as not to interfere with the performance of the governmental functions of the Federal Government. But, as far as punishing crime is concerned, as far as any other ordinary state supervision relates, not inconsistent with the performance of the supreme functions of the Commonwealth, the ordinary state law will run. But the United States have provided, and we, I understand, propose to provide here, that, where the state consents to the Federal Government acquiring any land, either by purchase or compulsorily, it thereby consents, and that consent is equivalent to the admission of the right of the Federal Government to exercise exclusive jurisdiction in respect to that particular portion of territory. And if the state does not choose to give its consent, it says, in effect-"You may take this land, it is true, by virtue of your sovereign right, for your sovereign powers, but you hold it as proprietor; you can carry on your post-office, your court-house, or anything you please, but as regards ordinary state laws outside those functions our state laws prevail. Where the state, however, is asked by the Federal Government to consent to the excision of a piece of land from its own territory for governmental purposes, and does consent, then the exclusive right of the Federal Government to govern that portion of land attaches to it, and this is what the sub-section we are now considering intends to enact. Therefore, I think that the leader of the Convention is right in not pressing this amendment, and that we should be doing well to keep in the words "with the consent," because it does not relate to the acquisition of property, but to the exercise of jurisdiction over the property when it is acquired.

The amendment was withdrawn.

Mr. BARTON (New South Wales).-In the sub-section which we are just about to [start page 262] dispose of the Drafting Committee suggested, and the Convention accepted the suggestion, to leave out the word "other" in the expression "or for any other purpose of general concern." I think it is a very proper amendment to make. It will restore the matter to the condition in which honorable members found it in their Bills as printed. I beg to move-

That the word "other" be omitted from the sub-section.

The amendment was agreed to, and the sub-section, as amended, was adopted.

Sub-sections (3) and (4) were agreed to.

Clause 53, as amended, was adopted.

Clause 69.-On the establishment of the Commonwealth the control of the following departments of the public service in each state shall become transferred to the Executive Government of the Commonwealth, that is to say:-

Customs and excise:

Posts and telegraphs:

Military and naval:

Ocean beacons and buoys, and ocean lighthouses and light-ships:


The obligations of each state in respect of the departments transferred shall thereupon be assumed by the Commonwealth.

The CHAIRMAN.-In this clause the first amendment is suggested by the Legislative Assembly of New South Wales. It is to omit the word "On" at the beginning of the clause, and to insert in its place the words "as soon as practicable after."

Mr. BARTON (New South Wales)-.There are two suggestions made with reference to this particular part of the clause. One is to make the clause begin with the words-"As soon as practicable after the establishment of the Commonwealth"; and the other is to make the clause begin with the words-"On a date to be proclaimed by the Governor-General after the establishment of the Commonwealth."

The CHAIRMAN.-The Council and Assembly of Tasmania make a suggestion which is substantially the same as this suggestion.

Mr. BARTON.-The Tasmanian suggestion is that, instead of the words "On the establishment of the Commonwealth," we should adopt the words-"On the day fixed by a proclamation issued for that purpose by the Governor-General." That is practically the same amendment as the last one I read. The difficulty which these two amendments are suggested to meet is a practical one, and I think we ought to adopt one of them. The clause as it is provides for the immediate vesting of these departments in the Executive Government of the Commonwealth, which term perhaps ought to read, "the Government of the Commonwealth." I think it is clear that there will be a great deal of inconvenience about the immediate investiture of these departments in the Government of the Commonwealth.

Mr. FRASER.-You will not have the machinery ready.

Mr. BARTON.-The Commonwealth itself does not come into force till after a date named in the proclamation, consequently there will be no Executive Government of the Commonwealth till the date fixed in the proclamation, which happens to be also the date named in the beginning of this clause. That will give rise to a very practical difficulty, because the departments will be handed over before the Government of the Commonwealth will be fully constituted and in working order. Therefore, it will be far better either to prescribe that the handing over should occur as soon as possible, or to adopt the words "On a date to be proclaimed by the Governor-General after the establishment of the Commonwealth." Perhaps the latter would be the better of the two amendments. I would suggest that we negative the one which has just been proposed, and adopt either that of the Parliament of Tasmania or that of the Legislative Council of New South Wales.

The amendment to omit "On" was negatived.

Amendment suggested by the Legislative Council of New South Wales-

After "On" insert "a date to be proclaimed by the Governor-General after."

The amendment was agreed to.

[start page 263] Mr. BARTON (New South Wales).-If we leave out the words "Executive Government of the," so as to make the clause read "transfer to the Commonwealth," it will be quite sufficient, and avoid difficulties. I beg to move-

That the clause be further amended by the omission of the words "Executive Government of the."

The amendment was agreed to.

The CHAIRMAN.-There is an amendment proposed by the Drafting Committee to transpose "Military and naval." There are several other amendments suggested by various Parliaments, but they are all concerning matters which the committee has already decided, and therefore I shall not put any of them.

Dr. QUICK (Victoria).-Under the head of "Posts and telegraphs," I would draw attention to the fact that that line remains in the condition in which it was before the insertion of the word "telephones" under the heading of "General powers." Under subsection (5) of clause 5, perhaps posts, telegraphs, and telephones would come together and could not be severed very well. I suggest the insertion of the words "and telephones" in this clause.

Mr. BARTON.-Those are the only like services we know of at present.

Dr. QUICK.-I beg to move-

That the word "and" after the word "Posts" be omitted, with the view to the addition of the words "and telephones."

Sir JOHN FORREST (Western Australia).-To hand over the telephones of a state to the Commonwealth seems to me to be an absurdity.

Dr. QUICK.-It has been done.

Mr. REID.-They are worked by the same departments, and that is the only reason why they are handed over.

The CHAIRMAN.-The object of the amendment is to make the Bill consistent with itself.

Sir JOHN FORREST.-I want to make it as inconsistent as I can in that respect.

Mr. KINGSTON (South Australia).-I would like to ask, sir, is it held that we cannot alter this clause because we have inserted in clause 52 the subjects of postal, telegraphic, and telephonic services?

Mr. BARTON.-Not that you cannot, but that it will be inconsistent.

The CHAIRMAN.-I do not say that you cannot, but this clause is simply as to the date when it should be handed over.

Mr. KINGSTON.-I was suggesting for your consideration, sir, whether it would not be competent for any representative to move to strike out the words "Posts and telegraphs;" and that would not be inconsistent with sub-section (5) of clause 52, because all the sub-section does is to give power to the Federal Parliament to legislate on this subject, a power which need not be exercised, and, even if exercised, might be exercised only to the extent of controlling the state's mode of management of these works. It does not necessarily decide that the control of the departments should be handed over. I respectfully submit that matter for your consideration, sir, and I know that your decision will naturally be to allow the fullest debate consistent with the rules of the Convention.

The CHAIRMAN.-I think the honorable member is right. It does not necessarily follow that the power given by clause 52 need be exercised.

Sir JOHN FORREST (Western Australia).-I beg to move-

That the words "outside the limits of any state" be inserted after the words "Posts and telegraphs."

Mr. REID.-Foreign cables-Banjoewangie.

The CHAIRMAN.-I would suggest to the right honorable member (Sir John Forrest) that it will perhaps be better if we adhere to decisions we have practically arrived at at this stage, and bring up these questions again when we are reconsidering the Bill.

[start page 264] Mr. BARTON.-If you decide afterwards on recommittal to leave out of clause 52 the legislative powers about post and telegraphs, then you will have, by consequence, to recommit this clause to strike out these words.

Sir JOHN FORREST.-I do not want to leave out that clause because the post and telegraphs are not-

Mr. BARTON.-May I explain to my right honorable friend. We need some power of the kind here, because there must come a time for the Commonwealth to legislate about posts and telegraphs and to take over the departments. If we make it read that it shall take place on the date of the proclamation by the Governor-General it will only take place when the Governor-General will take that action by publishing a proclamation. Then it would follow the action of the Commonwealth.

Sir JOHN FORREST.-I shall be glad to fall in with the views of the Chairman, and move the amendment at another time. My object in wishing to take from the Commonwealth control of the posts and telegraphs is that there is no necessity for the Commonwealth to take over that control. If there is one subject that is federated sufficiently at the present time it is the posts and telegraphs. We do not want federation in order to deal with that subject. All the posts and telegraphs of the civilized world are federated. With the exception of having the same stamp throughout the whole of Australia, there is not a single advantage which we could gain under a federal form of Government which we have not got now. But this clause will take away from the local Government the right to build telegraphs and post-offices here, there, and everywhere throughout its territory, and will be interfering; with local Government and local requirements. Every one knows that not only in these colonies, but throughout the civilized world, there is a Postal Union which we all form part of, so that we have already all the advantages of federation. To take away from the local Government the control of posts and telegraphs will not be doing any good; it will be very irksome, and will cause irritation, which will interfere with the smooth working of the new form of Government. I do not say that in 100 years it will be irksome, but it will be at first. When we are building up our different states, and when the erection of new post and telegraph offices and telegraph lines is a matter of daily occurrence, to have to go 1,000 or 2,000 miles to a central authority, in order to do what we now have a right to do for ourselves, will be regarded as very irksome and irritating, and will certainly do no good.

Dr. COCKBURN (South Australia).-I agree with the remarks of the Right Hon. Sir John Forrest, and I think it will be a mistake for the federal authority to take control of these matters, because, at present, on this subject, we have federated to the fullest extent of our requirements. I should like the right honorable gentleman to adhere to his intention to strike out the words in this clause.

Mr. REID.-It would not be right to deal with the subject in such an unexpected way.

Dr. COCKBURN.-It is not unexpected.

Mr. REID.-It would not be fair to do so without notice.

Dr. COCKBURN.-If we cannot-strike out the power in clause 52, I should like to see the power struck out here. The difference is this: That under clause 52 legislative action would be required,

whereas if the words are allowed to remain here the post-offices can be taken over by executive action.

An HONORABLE MEMBER.-Strike out both.

Dr. COCKBURN.-We may succeed in carrying one omission, but not both. I believe that the right honorable gentleman could succeed in striking out the words in this clause.

[start page 265] Mr. REID.-He will not take honorable members unawares.

Dr. COCKBURN.-If the right honorable member says there is a danger of any one being taken unawares, of course we shall not proceed. If we cannot strike out the power in both clauses I should like to see it struck out, here. If the posts and telegraphs had to be taken over by legislative action, I do not think the Federal Parliament would undertake the necessary action, because when the subject was debated they would see that the present system of administration would be better than consolidated administration, and that we already have all that is required. If, however, it depended only on executive action, as this clause implies, I think the federal authority might take over the posts and telegraphs without considering all that would be implied thereby.

Dr. Quick's amendment was agreed to.

Dr. QUICK moved-

That after the word "telegraphs" the words "and telephones" be added.

The amendment was agreed to.

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

Mr. BARTON moved-

That the words-

“Ocean beacons and buoys, and ocean light-houses and light-ships:


stand part of the clause.

The motion was agreed to.

Mr. HIGGINS (Victoria).-I want to call attention to the last two lines of this clause.

Mr. BARTON (New South Wales).-If the honorable member will move to omit the last two lines of the clause, with a view of dealing with them at a later stage of the Bill, when there is an opportunity, that would be acceptable.

Mr. HIGGINS.-I shall gladly accede to that request, as I feel there would be a difficulty in striking out the last few lines. I beg to move that the following words be omitted:-

The obligations of each state in respect of the departments transferred shall thereupon be assumed by the Commonwealth.

The amendment was agreed to, and the clause, as amended, was adopted.

Clause 52 (Legislative powers of the Parliament).

Mr. BARTON (New South Wales).-What remains of clause 52 to be considered is the question of river control, and, acting upon the understanding come to yesterday, I propose a further postponement of the clause in order that honorable gentlemen who have gone away upon that understanding may have an opportunity to be present during the discussion of the question.

Dr. QUICK.-"The people of any race" section might be re-inserted.

Mr. BARTON.-I was going to put that provision into the clause when we come to reconsider it.

The clause was further postponed until after the consideration of Chapter III.

Clause 71.-The judicial power of the Commonwealth shall be vested in one Supreme Court, to be called the High Court of Australia, and in such other courts as the Parliament may from time to time create or invest with federal jurisdiction. The High Court shall consist of a Chief Justice and so many other Justices, not less than four, as the Parliament may from time to time prescribe.

Amendment suggested by the Legislative Council-of South Australia-

Insert at beginning of line "Until Parliament otherwise provides,"

Mr. GLYNN (South Australia).-Before this amendment is dealt with I should like to indicate an amendment which I wish to ask the committee to consider. I wish to make the last sentence of the clause read:-

The High Court shall consist of a Chief Justice, and, until Parliament otherwise provides, the Chief Justices of the states. In the case of the illness or death of the Chief Justice the powers of the Supreme Court may be exercised by the other Justices, being not less than three.

Of course, the insertion of the words proposed by the Legislative Council of South Australia would upset my amendment, [start page 266] and perhaps I might be allowed to mention the reasons which have operated with me to again bring forward a proposal which at Adelaide obtained practically no support. Sir Samuel Griffith, in a pamphlet which he has published upon the work of the Convention, suggests that the Supreme Court at the beginning should be composed of one or two Federal Justices, while the Justices of the states might be utilized in the meantime. I think honorable members will see that such a suggestion is reasonable. Should we in the beginning have machinery which is not likely to be called into execution very often? If honorable members will look at the original powers conferred upon the Supreme Court by clause 77 they will see that perhaps not once in six years will these powers be exercised by the Federal Court. They are confined to matters relating to the representatives of other countries; arising under a treaty between states; litigation to which a state is a party; and litigation in which an officer of the Commonwealth is to be made subject to a prerogative writ. In very few case will there be an application to the original jurisdiction of the Federal Court. Again while that jurisdiction is original it is also appellate, so that the application may not be made to the Federal Court but to the subordinate court, and the appellate jurisdiction may not be called into existence at all. Then we have to fall back upon the delegations under clause 52. It is extremely probable that during the first two years of the Federal Parliament legislation will be confined to such a question as the arrangement of uniform customs duties. The passing of the Tariff will take a whole session, and during the first ten or fifteen years very few of the matters delegated to the Federal Parliament will become the subject of legislation. If there were such expedition as to make all these matters the subject of legislation, the chances are that the functions of the Federal Parliament would be exhausted in 25 or 30 years

Mr. HIGGINS.-Do you not think that for the first two years there would be a large number of cases, arising under the Constitution, to be settled by the Supreme Court?

Mr. GLYNN.-I do not think so, and I will tell you why. In America, they had at the start thirteen states. There was far greater likelihood of disputes, under the Constitution, arising between those thirteen states, because their mutual feelings prior to 1787 were those of antagonism rather than sympathy, and they were practically forced into union. But what was the experience of the Federal Court for the first 30 or 40 years of its existence? In 1801 there were only ten cases awaiting trial.

Mr. HIGGINS.-You have given more powers to this Parliament than were given to the American Parliament.

Mr. GLYNN.-Yes, but bearing in mind the fact that we are giving this Parliament a wide jurisdiction, I think that the constitutional points arising will be few. In 1801 there were only ten cases awaiting trial in the Supreme Court of the United States, although the Union waft composed of thirteen states as against a probable maximum here of five, and possibly only four states. In the five years following 1801 there were 120 cases before the Supreme Court, and the average number of cases between 1820 and 1830 was only 58 a year. Now, of course, the Federal Court is practically overloaded, but that is because of the enormous crop of private legislation, which we do not anticipate here. We know that there is a marvellous complexity of affairs in America, where they have 44 states, and enormous mercantile concerns, such as railway companies and other large companies, which create a condition of things that we need not anticipate here for a generation or two.

Mr. HIGGINS.-Shall we not feel the complexity here?

[start page 267] Mr. GLYNN.-We shall feel the complexity to the extent of the clashing of interests which may arise. But this clashing of interests cannot be very great, where there are only four or five states.

Mr. REID.-Is this relative to the amendment?

The CHAIRMAN.-No, I do not think it is. I understand that the honorable member is showing why the amendment of South Australia should not be carried, because of some amendment which he wishes to move.

Mr. GLYNN.-If the South Australian amendment is carried it will make it impossible for me to carry my amendment. I propose to make the appointment of the Chief Justices obligatory, and I propose to give power to the Parliament to appoint other Justices in lieu of the Chief Justices.

Mr. O’CONNOR.-Then vote against this amendment, and move your own amendment later on.

Mr. GLYNN.-I am giving reasons for my amendment now in order that it may be fairly considered upon its merits before the South Australian amendment is dealt with. I might mention, as regards the point referred to by the honorable member (Mr. Higgins), that we are giving a wider sphere of duty to the Federal Court by taking in local appeals, appeals from the state courts-

Mr. HIGGINS.-And far more subjects are remitted to the Federal Parliament for discussion and legislation.

Mr. GLYNN.-There are a few more. Of course, that affects the consideration of my remarks, but subject to this slight discount I think they remain open to fair consideration. With regard to appeals from state legislation to the Supreme Court, before these appeals come to the Supreme Court they must filter through the state courts, and we may measure their probable number by the number of appeals that now go to the Privy Council. I do not say that the proportion will be the same, because our courts will be more accessible, and because there are very great delays in England before a case

goes to the Privy Council. Sometimes a case has to hang over for two years; but still we must measure to some extent the chances of local appeals by the few cases, and they are comparatively few, that are sent to England. It may be objected, as it has been in Adelaide, that you are creating a tribunal in which some members of the court will be actuated to some extent by state prejudices. I may say, in answer to that, that in the majority of cases at all events the point of dispute will be between individuals and not between state and state. As between individuals, there is practically no opening for prejudice. You may have the Chief Justice of a state sitting again in judgment upon a verdict he has already given. But there will be four other Judges from the federated states and the Chief Justice of the Commonwealth, and the chances are that the operation of prejudice will be checked in that way. But we recognise at present that it is advantageous to have a Judge sitting on a question which he has decided in another court. We have sent Chief Justice Way to England as the representative of Australia on the Privy Council, with the possibility of his taking into consideration a decision that he gave in South Australia.

Mr. ISAACS.-Would he sit in such a case?

Mr. GLYNN-I have known a case in which a Judge sat as a Court of Appeal from a district court decision, and be again sat in Court in Banco and reversed the decision of the Court of Appeal. I was in the case myself, and I remember with pleasure, as showing the freedom from preconceptions of the Judges, the fact that the reversal did take place. This shows that courts are not operated upon very much by prejudice, and it seems to me that it would be an advantage rather than otherwise to have a Judge sitting on a question the whole facts of which have come before him in a lower court.

[start page 268] An HONORABLE MEMBER.-That was your experience when the verdict went your way.

Mr. GLYNN.-Decidedly. Very often points of law are coloured by the facts of a case, and we know that the facts do not, except in a synopsis, come before the Judges in the higher tribunal. The objection from the point of view of prejudice, which was largely relied upon at Adelaide, is not capable of being too strongly insisted upon. I think for this reason that we ought not at the start to overload the Federal Constitution with judicial machinery. We can by using the Chief Justices of the other colonies make a saving of £10,000 or £12,000 a year, and as Parliament finds that the judicial machinery ought to be extended, an opportunity will arise by the fact of the power being reserved to abrogate the right of the local Chief Justices to sit and to substitute other Judges. The federal character of the tribunal must be amply recognised and preserved by the establishment of a Federal Chief Justice, and that is part of my amendment, and the part which makes it different from the suggestion of the Parliament of South Australia.

Mr. BARTON (New South Wales).-I desire to intimate, as early as possible, that I, for one, intend to stand by the clause. I do not believe in accepting any amendment which will subject the judiciary system of the Commonwealth that judiciary system, which is to be the arbiter in any dispute that may arise between state and state or between state and Commonwealth-in all its constitution, and under all circumstances, to legislative changes. I do not think that that is a desirable thing in any sense of the word. No matter at what low limit you place it, or what the number of Judges is, the foundation of the judiciary system should stand on the bedrock of the Constitution, and words which may be taken advantage of to make change after change, which would enable the Parliament to alter arrangements upon the faith of which the various states will enter into this agreement, should not be inserted. Insert these words-"Until the Parliament shall otherwise provide," and it means this: That the Parliament may at any time pass an Act to destroy the Supreme Court of the Commonwealth, and to destroy the power vested in the Parliament to create other federal courts, or give federal jurisdiction to certain of the state courts.

Mr. HIGGINS.-Although the Supreme Court is to be the arbiter between the states and the Commonwealth.

Mr. BARTON.-Yes, although the Supreme Court is to be the arbiter between state and state or state and Commonwealth. This amendment would place it in the power of the Commonwealth to make such alterations as would practically destroy this power. That is an objection of principle which goes to the root of the amendment. We ought on no consideration to consent to any alteration which would subject the foundations of this court as an arbiter between the states to the risk of legislative changes. We have used the words "Until Parliament otherwise provides" for many purposes in order to give elasticity of legislation to the Parliament of the Commonwealth, and to avoid the necessity of resorting to a referendum of the people for making minor changes. But this would be no minor change. It would be a structural change in the whole fabric of the Constitution. These words "Until Parliament otherwise provides" were never intended to be inserted for the purpose of enabling Parliament to structurally change the Constitution. This is the argument I have against the amendment suggested by Mr. Glynn. I would also like to say now that in this clause it should be provided, as it is at present, that there shall be a Chief Justice and a minimum number of Judges. Whether that minimum number is four or three is not a matter of so much concern, but that there shall be a Chief Justice and a minimum number of Judges [start page 269] is necessary to the constitution of this source of arbitrament, to which we all attach so much importance. The proposal that the court should be constituted of Judges from the various provinces, or of the Chief Justice from each province, is one to which I would also offer opposition, and on this ground: The formation of this court should always be open to be made in such a way that it would embody the best talent available to the Commonwealth for the constitution of so important a tribunal. It is intended to be a court with high appellate powers. It will have to decide disputes between the states and between the states and the Commonwealth. If so, in its constitution there should be every opportunity afforded of gathering together the best talent available from end to end of the Commonwealth, and a restriction of its constitution to a choice of the Chief Justices of the various states, however good they may be, would, instead of keeping up to that court its federal character, which is the most important part of its character, impart to it a provincial character. It would also lead to the suspicion that the Chief Justices chosen from the various states were intended to be in some sort of way the representatives of provincial interests, and that it was not intended that the court in its impartiality should be representative of the Commonwealth as distinct from the provinces.

Mr. ISAACS.-The tenure of the Judge would depend on the laws of the state.

Mr. BARTON.-Yes, the constitution of the highest court of the Commonwealth might depend on any law the state might from time to time make.

Mr. SYMON (South Australia).-The amendment that we are considering is the insertion of the words "Until Parliament otherwise provides"; but Mr. Glynn has enlarged the scope of the discussion by suggesting a further amendment. I desire to call attention to that amendment. I think honorable members will agree with me that a more nondescript tribunal could not very well be constituted than that which he proposes. He wants to strike out all the words after "and," in the fifth line, and to add "Until Parliament otherwise provides the Chief Justices of the different states in the Federation." The effect of that would be that we should have a Federal Chief Justice, and that the Chief Justice in each separate state would become, immediately he crossed the border of his own state, into federal territory, a Puisne Judge of the higher court. We should then have this extraordinary sort of olla podrida, a Federal Chief Justice owing his position, his emoluments, and his judicial allegiance to the Federal Parliament, and four Puisne Judges in one sense under him who are Chief Justices in their own court, and who owe their judicial allegiance and their emoluments to the separate states.

Mr. GLYNN.-You have that in the case of the Privy Council at the present time.

Mr. SYMON.-It is a very bad thing, and the sooner that anomalous judicial body-the Privy Council-is wiped out, for that and for other reasons, the better. I am obliged to my honorable friend for giving me at this preliminary stage so valuable an argument. But then, as my honorable friend (Mr. Isaacs) interposed a moment ago with an exceedingly pregnant suggestion, they will all owe their tenure of office-not only their judicial allegiance and emoluments, but their tenure of office-to the

state. Then see what an extraordinary position these Judges would occupy in a High Court so constituted. I could understand the suggestion, although I think it would not be one which would meet with the approval of any reflecting man, that the Judges of the different state courts, or a selection of them, should constitute the High Court of Justice; but to say that you should have a Federal Chief Justice appointed by the federal authority, and, as I say, owing undivided allegiance, if I may use [start page 270] such an expression in relation to judicial affairs, to the National Government in its highest sense, is a position of matters which I am sure could not possibly commend itself to any one. I certainly did not bear any argument that was at all convincing on the question of the desirability of making such a change as this, but my honorable friend must also have noticed that by so altering the clause you are limiting the choice of the Federal Executive in the selection of its Judges. It would be perfectly and absolutely competent for the Federal Executive to choose the men who are to occupy this commanding position in the High Court that we proposed to establish from existing benches, which would comprise men of great experience and great judicial knowledge.

Mr. KINGSTON.-Do you think retirement should be necessary?

Mr. SYMON.-I think retirement ought to be compulsory. I think they should not hold a divided office with a divided allegiance, if I may so express it. At any rate, there is nothing to prevent the Federal Executive from having the benefit of the experience, the wisdom, and the learning of the existing occupants of the judgment seat in Australia if they so choose. But if you introduce this into the Constitution, you are limiting the power of selection by the federal authority, limiting their choice, and binding them down to the selection of one Judge-the Chief Justice-from the whole of the judicial power of Australia, whether on the bench or off it; and as to the other Judges-whether the number is two or four, is, as Mr. Barton said, a matter of minor importance-limiting their choice to the existing benches, I think it cannot be too strongly emphasized that such a state of things would be extremely unsatisfactory. You are sending an arbitrator from each state to sit on the judicial bench, who will go, as arbitrators often do, as a partisan. Judges are human beings.

An HONORABLE MEMBER.-Judges do not act in that way.

Mr. SYMON.-I was talking about arbitrators. Everybody recognises the fact that when a matter goes to arbitration, each of the rival parties selects the man whom be thinks most likely to give judgment in his favour.

Mr. ISAACS.-And be is called an indifferent person.

Mr. SYMON.-Yes, he selects an indifferent person who is to be a partisan, and then these two between them choose an umpire. You will have a dispute between South Australia and Victoria-no, such a thing is not possible-or rather between Victoria and New South Wales, and the amputations and the insinuations that may possibly be made as to the views which these respective Judges would take can be imagined. Then you would have a Federal Chief Justice, having in the long run to occupy the position of arbiter between them. Do honorable members really think any of the Chief Justices of the different colonies would consent to occupy such a subordinate position as that of Puisne Judge in this tribunal?

Mr. KINGSTON.-It is a higher court.

Mr. SYMON.-It is a higher court, no doubt, but his position in that court would be that of a Puisne Judge. The Chief Justice in his own colony would be called His Honour the Chief Justice, but in the Federal Court he would be His Honour Mr. Justice so-and-so. The whole thing is absurd and ridiculous as a constitution for this court. If any special advantages could be associated with it, I, for one, would be willing to give it my very best consideration, and favour its adoption if it could possibly be shown to be advantageous, but that has not been done so far. My honorable friend referred to Sir Samuel Griffith as supporting this. Now, I do not know that we ought to be over-influenced by Sir Samuel Griffith's views, which seem to me to be a little permeated by hypercriticism. If my

honorable friend, however, had read the passage in Sir Samuel Griffith's very valuable contribution to the criticism of this subject he [start page 271] would have found that this is a mere tentative suggestion. All Sir Samuel Griffith says is that it is worthy of consideration. He admits that the arguments in favour of an independent Federal Judiciary "are obvious and are no doubt very cogent," and he merely suggests at the end of these criticisms that "it is worthy of consideration whether it might not be wise to empower the Federal Parliament, if they think fit, to make laws authorizing the provisional constitution of the High Court in whole or part by Judges of the state courts." This amendment, in my opinion, would be futile, and would be a blemish on the Constitution we are framing. But the great argument against it is that which was so forcibly used by Mr. Barton, namely, that by adopting this you are doing something which is utterly opposed to the whole basis and principle upon which this High Court is founded. The object is to create a court which shall settle all these difficult constitutional questions. It is to be clothed with all the powers of a High Court of Appeal, and it will in this respect I disagree with my honorable friend-it will have an immense amount of business from its very first inception. We know the difficulties that we have had in construing different provisions, and we are aware of the difficulties which the Drafting Committee have experienced. The High Court will be the tribunal to which the interpretation of this Constitution will be committed, and to which will also be committed-that is to say, if those who constituted the majority of this Convention before have their way again-the vast body of appeals in relation to the ordinary litigation of the country. My honorable friend thinks that cases under the Constitution will be few, but I disagree with him in that. I think that in all probability they will be many but whether they be few or many, the High Court should not depend for the discharge of its duties on the convenience of a Judge of another court in another state, whose time may be greatly occupied with his own affairs. He has to do his own work, and to perform his own duty, and if, the Judges of the separate state courts discharge their functions thoroughly, as we know they do, they have very little time for entering on a new jurisdiction, and bringing upon themselves an additional responsibility.

Mr. BARTON.-They all complain of overwork now.

Mr. HIGGINS.-When there is an application, for a mandamus under the original jurisdiction it will be very hard to get the Judges to attend to hear it.

Mr. SYMON.-This would involve the thing which we are all against, that is, Judges sitting to hear an appeal from their own judgment. As Mr. Barton has pointed out, there are several very important considerations which have to be taken into account; but the main objection is that the whole object of our constituting the High Court is to get, as Sir Samuel Griffith says, a strong and independent-tribunal entirely detached from the states, and if we adopt this amendment we shall be getting a hybrid tribunal which will be open to the objections which have been already stated. It will, at any rate, be certainly open to the objection of placing upon the shoulders of the local Chief Justices the lowered dignity which they would assume in becoming second or third or Puisne Judges of this other court, and of placing also upon their shoulders an additional burden of work, which, if they do their own work in their own states, they would have neither the time nor the opportunity to perform satisfactorily. Therefore, I say, on all these grounds it would be a fatal blow to the Federal Court we are seeking to create if this amendment were adopted.

Mr. KINGSTON (South Australia).-As regards the amendment now proposed, I shall be found recording my vote against it, because I think we ought to provide, in as clear a way as we possibly can, how the Federal Judicature shall be constituted, and [start page 272] remove it beyond the sphere of parliamentary control. We have already made great efforts in that direction at Adelaide. I think they were fairly successful, but now to introduce into our work a limitation seems to me to be striking a blow at the security of the court. I cannot follow my fellow representative (Mr. Symon) in the views he has expressed as regards the amendment of my honorable and learned friend (Mr. Glynn), and I shall probably be found, when the time comes, recording my vote for that amendment.

Mr. SYMON.-You will reflect a little before that time comes.

Mr. KINGSTON.-There will be an opportunity for reflection in the ordinary course of events. But this is a matter to which I have given a considerable amount of attention. I think Mr. Symon has put the case too strongly when he says that if you avail yourself of the services of the Chief Justices of the different colonies, they will owe allegiance to the colonies from which they come, and will regard themselves to some extent in the light of partisans, and justice on the broadest aspect will not done. If we were to consider this matter having regard to who the Chief Justices are, we should immediately raise such a question, but it is not merely a question of the Chief Justices of the day. I make bold to think that the time will never come in any of the colonies of Australia when any Chief Justice or Puisne Judge of the Supreme Court will have any other regard than to do what is right under all the circumstances of a particular case, without regard to any consideration as to whom his appointment was made by. But if you were to adopt the argument of my honorable friend (Mr. Symon), and admit its force, what does it amount to? Under this Constitution the court will be created to a very great extent for the purpose of settling disputes between the Commonwealth and the states, which may arise very frequently, and for the purpose of determining what shall be the relative rights of these two bodies. Mr. Symon says, reject the Chief Justices of the various provinces, because they would be likely to pronounce a decision in favour of the states from which they came. But what does he propose on the other hand? He proposes that the High Court shall be exclusively constituted of those, to use his own language, who owe allegiance to the Commonwealth, and the Commonwealth only. Adopting therefore, the argument he expresses, what becomes of the prospects of justice being meted out to the states in a conflict between the states and the Commonwealth, when the Judges of this court are exclusively the creation of the Commonwealth?

Mr. ISAACS.-You would not carry the matter of state interest into the Australian High Court?

Mr. KINGSTON.-One of the most important subjects which is likely to come under the notice of the High Court of Australia is where the federal authority ends and the state authority commences, or vice versa. On a matter of that sort there may, in the natural course of things, be the greatest amount of feeling, and I ask honorable members to consider whether if my honorable friend's (Mr. Symon's) argument has weight in suggesting bias-

Mr. SYMON.-I did not suggest bias; I merely illustrated the position.

Mr. KINGSTON.-I do not wish to put the matter an stronger than Mr. Symon put it in suggesting what possible influence the Judges might be affected by.

Mr. WALKER.-Unconscious bias.

Mr. KINGSTON.-I do not care what the term is. I am suggesting what Mr. Symon suggests as to the provincial Judges, and I am asking whether the same remarks would not apply with equal force to the constituted authority if appointed by the Federal Government? It seems to me that if there was any strength in an observation of the character to which I have referred, honorable members should rather come to the conclusion that substantial [start page 273] justice to the merits of the case will be done without regard to the source of the appointment of the Judges. The matter can be best met by the proposition of my honorable and learned friend (Mr. Glynn) that there shall be a representation of both sides, the states and the Commonwealth-the Commonwealth by the Chief Justice appointed under the federal authority, and the states by the Chief Justices of the different provinces.

[The Chairman left the chair at one o'clock p.m. The committee resumed at eight minutes past two p.m.]

Mr. KINGSTON.-When we adjourned, I think I had said sufficient for the purpose of showing that there is no more reason for the Federation to be apprehensive of injustice at the hands of Judges, who, to use an expression that has already been used, owe their allegiance to the states, than for the states to be apprehensive of injustice at the hands of Judges who owe their allegiance to the Federation. The fitting solution, I think, is found in the proposition of my friend (Mr. Glynn), which is

that there shall be a representation of both the Chief Justice of Australia, the highest officer in the Commonwealth responsible to the Federation, and the other Judges, more numerous, and selected on account of the positions which they occupy in respect to the provinces. I would like, further, to say that I think there is nothing in the contention that the Chief Justices of the different provinces would be unwilling to accept positions of the description suggested. I know of no higher position in the gift of the federal authority than the position of Judge of the High Court in Australia.

Mr. REID.-I know that one of the Chief Justices is strongly in favour of such a constitution of the Federal Court.

Mr. KINGSTON.-That is Sir Samuel Griffith, Chief Justice of Queensland?

Mr. REID.-No, I allude to another Chief Justice.

Mr. KINGSTON.-I am glad to hear from Mr. Reid that not only is Sir Samuel Griffith, a gentleman whose name commands respect in federal circles, and everywhere else, and who occupies the high position of Chief Justice of Queensland, in favour of a proposal of something of this sort, but that another gentleman occupying a similar distinguished position favours the same proposal. I do not see how it can be seriously contended that the post of Judge of the High Court of Australia is in the slightest degree inferior-it scenes to me to be in many respects considerably superior-to that of the post of Chief Justice in the provinces. If I recollect rightly, there was a meeting some years ago in this city of various representatives of the judicial benches of the different colonies, in which a proposal, something of this sort, met with considerable acceptance, but I am sure that my friend (Mr. Symon), who has indulged in some gloomy prophecies as to the difficulty of getting the Chief Justices to accept a position of this kind, would have some difficulty in referring to any particular instance in which any such difficulty would be probable or natural. Another reason, and that is the reason which was urged with great force by my friend (Mr. Glynn), is the necessity of economy. We should, above all in the early stages of the constitution of this Federation, be careful lest we involve the Commonwealth in an unnecessary expense-in expense which is altogether out of proportion to the necessities of the case. It seems to me that, although this Bill is in a preferable shape to that in which it originally saw the light, in that it contains no appropriations within the four corners of the Constitution, of any huge sums for judicial salaries, yet, if we do not carry an amendment such as is now suggested, we shall take away from the Commonwealth a facile means of providing all that is required, at least in the earliest period of he history of the Constitution, at the least possible expense. I am sanguine [start page 274] that if a proposal could be submitted to Australia as to whether or not it would be satisfied with a court constituted, as suggested by my honorable friend (Mr. Glynn), of a Federal Chief Justice and the Chief Justices of the colonies, there would be a practically unanimous assent to the proposal. I think that a court so constituted would be eminently satisfactory, and would, at the same time, enable the Commonwealth to secure in an economical manner every efficiency which could possibly be desired. I would ask who are they who, in the natural order of things, we can more respect than the members of the judicial benches of the Australian Colonies? In creating a tribunal of this description we will at least remove, it seems to me, from the sphere of federal politics the great majority of judicial appointments, and enable the Commonwealth to be served with a degree of efficiency and economy which can be in no other way secured. In these circumstances, whilst I shall be found resisting the amendment which is now proposed, I do trust that some proposal on the lines of that which is suggested by my honorable friend (Mr. Glynn) may be adopted. Something has been said as regards the impropriety of Judges sitting in courts of appeal to review their own decisions. Some colonies have adopted legislation prohibitory of any such course being taken. It has been done in Queensland, and, I think, also in New South Wales. We have not yet placed any such legislation on the statute-book of South Australia; but I do think that the position which is sought to be affirmed by legislation of that character is a right and proper one, and, whilst avoiding speculating as to the probability of a similar course being adopted in the colony from which I come, I would be perfectly prepared to see a principle of that sort embodied in the Constitution. Possibly it may not be considered a matter of constitutional importance sufficient to require a declaration within the four corners of the Constitution, but, so long as it is left to the Federal Parliament to deal with it, all that is

necessary may be secured. Under these circumstances, I think we shall be meeting the public wish for economical and efficient administration of justice in the higher spheres by adopting a proposal of the character referred to. I shall be found at the right time recording my vote in favour of the proposal suggested by my friend (Mr. Glynn).

Sir JOHN DOWNER (South Australia).-I shall vote for the clause as it stands. There are questions of the very greatest importance involved in this discussion, particularly in the amendment proposed by the South Australian Council, and to a large extent in the suggestion made by my honorable friend (Mr. Glynn). The amendment which is suggested by the South Australian Council goes to the very root of the Constitution. The very essence of this Constitution is the establishment of a Commonwealth which is not to interfere with the rights conferred on the states, and a tribunal to decide when those rights are imperilled. To provide that the Parliament-the very tribunal whose jurisdiction is intended to be questioned, or over the exercise of whose jurisdiction there is to be a supervising power-should itself be the authority to decide what the tribunal should be that is to sit in judgment on itself, in disputes between it and the states, is to make an attack on the very cardinal principles on which Federal Constitutions are established. I really do not think that in this committee there will be a great deal of difference of opinion on the subject that that amendment ought not to be agreed to for one moment. I disagree also with the suggestion of my honorable friend (Mr. Glynn), that you should in your Constitution fix, without really knowing very much about it-of course, I am speaking of the committee as a whole-on the tribunal that is to be established at the initiation of the Commonwealth. Each colony I suppose, knows and has varying [start page 275] opinions of the excellency of its own tribunals. The other colonies have some knowledge of the gentlemen constituting the Supreme Courts of those colonies, but who can be said in this Convention to have an accurate knowledge of the abilities of the Chief Justices of all the colonies?

Mr. HIGGINS-And who will be, too?

Sir JOHN DOWNER.-Still less of those. I want to put the argument in its strongest light, and, therefore, I do not refer to fixture Chief Justices, who, of course, only some one who is not here possibly can decide. I prefer to confine myself to the more narrow limits, of which, in the ordinary course of things, we may have some knowledge. I ask how many honorable members of this Convention can honestly say to themselves that they are competent to express an opinion, not merely about their own Chief Justice, but about the Chief Justices of all the other colonies?

Mr. SYMON.-But this would arrogate to this Convention what is really the function of the Federal Parliament.

Sir JOHN DOWNER.-My honorable and learned friend has said exactly what I was coming to. In ignorance of the details of the subject, and having the most general views about it, we are to take upon ourselves the important functions of the Executive of the Commonwealth, by deciding, in the first instance, who are to be the men who will have the greatest part in forming this Commonwealth; because honorable members must not forget that, although we form it in form, they form it, to a large extent, in substance. With them rest the vast powers of judicial decision, in saying what are the relative functions of the Commonwealth and of the states. With them rest the interpretation of intentions which we may have in our minds, but which have not occurred to us at the present time. With them rests the obligation of finding out principles which are in the minds of this Convention in framing this Bill and applying them to cases which have never occurred before, and which are very little thought of by any of us. With this Supreme Court, particularly in the earlier days of the Commonwealth, rests practically the establishment on a permanent basis of the Constitution, because with them we leave it not to merely judicially assert the principles which we have undoubtedly asserted, but with them rests the application of those principles, and the discovery as to where the principles are applicable and where they are not. As was felt in America, and in every Federation which has had any permanence, there comes the necessity of a tribunal to stand between the states and the Commonwealth, of such dignity and held in such esteem, so free from all possibilities of influence or corruption that the general people of the Commonwealth will recognise that the jurisdiction has

been well placed, and must be properly exercised. Now, what is proposed to be done here? The question of expense I attribute no importance to at all. It is so small that it is not worthy of serious consideration.

Mr. DOBSON.-It means £50,000 for the first few years.

Sir JOHN DOWNER.-No, it may mean £10,000 or more; but suppose it means £20,000 a year, divided amongst the whole of Australasia.

Mr. SYMON.-£20,000 in order to secure the best kind of justice.

Sir JOHN DOWNER.-Where is the importance of £20,000, compared with the placing of our Constitution on a basis which will recommend itself to everybody, and its vindication by a tribunal about which there can be no question? The point of view of expense is parochial to the lowest degree, and not worthy of one moment's serious consideration. Now, as to the motion that the Chief Justices should be as a matter of course members of this court, I say, first of all, you are placing the appointment of the Judges out of the Commonwealth which you have created, and you are giving it to the states, which is a direct invasion of the [start page 276] other principles which we are all trying to establish. They may be good, they may not. That depends upon whether the state appointments are good or bad, and whether the states happen to exercise their power of appointment wisely, or whether they do not.

Mr. KINGSTON.-Would you disqualify the provincial Judges?

Sir JOHN DOWNER.-I will come to that presently. The power of appointing the very highest tribunal, on which, after all, the duration of the Commonwealth must rest, is not to be exercised by the whole Commonwealth, but is to be exercised by each independent state, and appointments of greater or less efficiency may result. I will now deal with what the Premier of South Australia has suggested. Would you disqualify the Judges of any of the states? I say, certainly not. In all probability the selection would be made from them to a very large extent. If, for instance, Sir Samuel Griffith were selected, I do not suppose there would be any complaints on the part of many people in Australasia, and so there are other persons, or one particularly, whom we have placed in all important position in the conduct of our affairs here, with respect to whom, if placed in a position of importance in the judicial authority of the Federation, I do not suppose there would be any difference of opinion. I would not limit the area of selection in the slightest degree; but I would do two things. I would do this-I would say that a Judge of the Federal Court should not occupy the dual position of Judge of the Federal Court and Judge of any state court.

Mr. KINGSTON.-That is taking the power out of the hands of the Federation, even if they desire to do that.

Sir JOHN DOWNER.-Not at all; the Federation has no control over the state courts, and no right to dictate to the state courts, but the Federation has a right to dictate to itself, and the Federation, dictating to itself, will say-“Our Judges shall by no possibility be mixed up with the local concerns of any state or with local politics." From that point of view, we in no way limit the area of selection; otherwise we know that, owing to the infirmities of human nature, men might come into the position with prejudices here and there. That is inevitable. We have only certain material to deal with, and we must deal with that material in the best way we can; but, doing that, we say whatever local limitations you have now, they will not be extended by allowing the Judges to occupy the dual office of a Judge here and a Judge there. My honorable and learned friend, the Premier of South Australia, gave away the whole situation when he said he was prepared to accept a provision that a Judge should not sit in the hearing of appeals from his own decisions. Why should he not do so? Because he would have a natural prejudice in favour of the judgment which he had given. That is founded on the general infirmity of human nature.

Mr. KINGSTON.-It is a conclusion which he has arrived at, and in which he will have to be disturbed.

Sir JOHN DOWNER.-And on which he does not like to give way.

Mr. KINGSTON.-I hope not.

Sir JOHN DOWNER.-The honorable gentleman is so removed from the passions and weakness of humanity, that it has never occurred to him that each a thing could take place. But that is not the case, with weaker men, whom I have met in my time. I have known men to adhere to a thing because they have said it previously. I have known men to vote against their convictions because they said-" How can I give way when I have expressed a strong opinion?"

Mr. HIGGINS.-That must have been in South Australia.

Mr. KINGSTON.-No; it has occurred in the course of Sir John Downers travels.

Sir JOHN DOWNER.-Probably the people I have met have been of the weaker sort, but I have known that to occur, and I [start page 277] need not go a thousand miles away for examples. I might even find them in Victoria, when gentlemen who, even in this present Convention, during the course of its sittings, have entertained grave doubts whether they should adhere to opinions they have vehemently expressed, but who at the same time said, after expressing them so strongly, they could not see how they could go back on their previous statements, although I am sure they will do so ultimately. I am merely referring to this as an instance of the weakness which I am most painfully conscious of in myself, and I am perhaps judging my fellows by an unfair standard in reasoning from my own feelings and experience oil this subject. I think that this great tribunal, of such dignity, with such responsibility, should be removed from all possible thought or shadow of prejudice or influence. If a Judge might be prejudiced in favour of his own decision so that he should not be allowed to sit upon a tribunal which is considering it, will not the same argument. though in a much smaller degree, apply to the colony which that decision might materially concern? The Judge, in the case which my honorable friend has conceived, who has decided in a certain way, should, he thinks, be excluded from being a member of a, court of appeal sitting to consider his decision. Does not my honorable friend consider that he might go a little further, and say that where a question materially concerns one colony-South Australia, for example there might be an unconscious prejudice? If he thinks that there would be no unconscious prejudice, does he not think that other people might believe that there was?

Mr. KINGSTON.-If you regard that, where are you?

Sir JOHN DOWNER.-It is almost as important that the administration of justice should be thought pure as that it should be pure. In order to produce a tribunal with such a big jurisdiction as this will have, which would be beyond all risk of public suspicion, you should surely provide that the Judges should occupy no other position than that of members of this tribunal. By that means you will have your Constitution well established in the first instance, and supported afterwards by a tribunal in which the people will have confidence. The question of expense, divided as it will be amongst these great colonies, I look upon as of no importance. We are all indebted to Mr. Glynn for his great thoroughness. He has given us some American statistics to show how small the work of the Federal Judiciary is likely to be in the first instance. I thought there was a little of the wisdom of the serpent when my honorable friend stopped at the year 1820.

Mr. GLYNN.-From 1820 to 1830 I gave the average of cases as 58 a year.

Sir JOHN DOWNER.-I thought that my honorable friend did just as well to stop at a time before commerce began to make the great strides which it has since been making, and before the judicial business of the Federal Courts had become out of all proportion to that which they originally transacted.

Mr. DOBSON.-The honorable member (Mr. Glynn) admitted that the business of the Federal Courts had grown very considerably.

Mr. SYMON.-The Supreme Court of the United States has not a tithe of the jurisdiction which we are conferring upon this court.

Sir JOHN DOWNER.-Of course not. But in any case an analogy drawn from the work of the Supreme Court of the United States in 1820 or 1830 must be illusory. The courts then had nothing to do in comparison with what they have to do at the present time, and in comparison with what our courts will have to do.

Mr. DOBSON.-How many cases does the honorable member think there will be in the first five years?

Mr. BARTON.-How many cases do you think there will be?

Mr. DOBSON.-About half-a-dozen.

[start page 278] Sir JOHN DOWNER.-I am glad that my honorable and learned friend has got that answer. This court is not only to have a considerable original jurisdiction, but it is to be the Appellate Court for all the courts of Australia. I will ask the question: How many appeals are there from Australia at the present time-that is, from New South Wales, Queensland, Victoria, South Australia, Tasmania, and Western Australia?

Mr. DOBSON.-I am only alluding to appeals where the states complain that the Federal Parliament has infringed state rights.

Mr. SYMON.-Take Canada as an illustration. Last year’s decisions are contained in a volume 6 inches thick.

Sir JOHN DOWNER.-I will first of all deal with the answer I have got. My honorable friend would propose to give this court an appellate jurisdiction in any case. Whether it is to be a court of final jurisdiction is another question. I do not think any honorable member is prepared to say that the Federal Court should bot be a Court of Appeal from the Supreme Courts of all the colonies. The question between us is: Whether it is to be a court of final appeal, or under what circumstances shall an appeal be allowed to the Queen in Council. Therefore, there was great relevance in asking how many appeals there are from the colonies.

Mr. DOBSON.-I am serving the appeals which have reference to the Constitution.

Sir JOHN DOWNER.-I venture to say that that is not a fair severance. If every one of us, including my honorable friend, is agreed that the Federal Court should be a Court of Appeal from the Supreme Courts of the colonies, my question is a pertinent and relevant one. If my honorable friend thinks it should not be a Court of Appeal his objection is pertinent and his answer relevant. Otherwise, his answer is unsatisfactory. This court will have a good deal to do only in dealing with appeals from the different colonies; but the matter does not end there. Does my honorable friend suppose that at the initiation of this Commonwealth the relative powers of the states and the Commonwealth will not be the subject of a good deal of question?

Mr. DOBSON.-Yes, after the first few years.

Sir JOHN DOWNER.-On the contrary, I should say during the first few years. After the first few years the difficulties will have all gone.

Mr. GLYNN.-Then we must be doing very bad work.

Mr. KINGSTON.-Yes. At all events, we will try to make the Constitution as clear as possible.

Sir JOHN DOWNER.-We are not of necessity doing bad work because we do not make provision for everything. We are dealing with the most intricate of all mercantile concerns. We have enough analogies and decisions in connexion with the American Constitution to assist us, but we have no guarantee that the views of our Federal Judiciary will always be the same as those of the American Judiciary. There may be some circumstances for which, with all ingenuity, we shall be unable to provide. In my opinion, from the very first there will be plenty of work for the Supreme Court to do to justify the establishment of this tribunal, even apart from the necessity for a constitutional Court of Appeal. In the meanwhile, of course, we have to do the best we can to make matters so clear that there need be no necessity to go to courts. The very fact of the establishment of a tribunal in which the citizens of the Commonwealth have perfect confidence, and which they know will decide only according to justice and right, will not create litigation, but prevent it, and will be a guarantee to every man, woman, and child in the Commonwealth that that which has been enacted will be carried out.

[start page 279] Mr. HIGGINS (Victoria).-As one of the Judiciary Committee, I think it will not be amiss for me to say that I object to both of these amendments, and I will state my reasons. I have been a good deal impressed by the argument of economy, which is really the chief argument in favour of the proposal; but if this court is to fulfil an essential function in the Commonwealth, we should not, in this Convention, adopt a cheeseparing policy. The saving of a few thousand pounds-even if it amounts to a few thousands-is a small matter as compared with the great issues which will depend upon the constitution of this court. The proposal of the South Australian Parliament is practically to allow the Federal Parliament at any time to change the character of this Supreme Court of Australia. As I interjected, so I repeat now, the Supreme Court of Australia is to be the arbiter between the Federal Parliament and the state Parliaments, and it would be most dangerous to allow the Federal Parliament a power to change the constitution of a court which will have to decide between its wishes and the rights of other parties. I would also submit that it is even more important to preserve the independence of this Federal Court in the Australian Constitution than it was in the American Constitution we have the three authorities-the Executive, the Legislative, and the Judicature-all distinct. The Executive is not controlled by the Legislature, and the Legislature is not controlled by the Executive is not controlled by the Executive; but here under responsible government-and we all assume that this Constitution will give us responsible government-the Executive and the Legislature must pull together. So long as the Executive is the creature of the Legislature so long the Legislature and it must be in harmony, and therefore we have two great powers-the Executive and Legislature-under the Australian Constitution having a great interest to pull one way, and having every temptation to so mould the character of the High Court as to get it to adopt their views. I am not speaking of merely theoretical danger. I would ask those honorable members who are familiar with what happened in connexion with the income tax dispute in the Supreme Court of United States to bear me out. They will remember how it has been said-I hope unjustly-that, with a view of getting a reversal of a previous decision with regard to the income tax, certain Judges were appointed to the bench in America, and the income tax decision was reversed. I agree with Sir John Downer to a large extent. It is important, not only that we should keep the bench pure, but that, like Caesar’s wife, it should be above suspicion. In the American High Court it is the practice on occasions for the court to reverse its own decisions. The House of Lords does not do that. If that power is exercised, as I suppose it will be, in Australia, as it is in the United States, the danger will be still greater, because Parliament, by altering the number of Judges, and by making stipulation’s as to their appointment, could so mould the character of the High Court as to get from it a decision conformable with its own views as against the views of the state Parliament. It has been said that there will bot be enough business for the court. I do not think that what happened in the United States affords any clue to the business that will be done here. In the early years of the Constitution of the United States there was very little federal

business. There were then no inter-state canals, and the relations of state with state were much less intimate than they have been since the introduction of railways.

Mr. SYMON.-What was their commerce then?

Mr. HIGGINS.-Owing to the conditions of travel it was impossible that there could be such inter-state relations and inter-state difficulties as there will be under the complexity of modern commerce, and we in Australia will share [start page 280] in the complexity of modern commerce, although we cannot suppose that with our small population we shall have as much legislation and as much litigation as America had in the Federal Parliament and in the Federal Court. May I also indicate to Mr Glynn, in regard to the matter of the appointment of Chief Justices, that under this clause the Executive can, if they think fit, appoint it Judge of any of the state courts as a Judge of this court?

Mr. KINGSTON.-Would you be willing to make it clear that one man might hold the two offices?

Mr. HIGGINS.-I think it is clear enough. The Executive have power to appoint any one.

Mr. KINGSTON.-To hold the two offices?

Mr. HIGGINS.-Yes, but I shall point out presently why it would be inexpedient for one man to hold the two offices. Mr. Glynn is hardly correct in stating that Sir Samuel Griffith, in his Notes, recommended that the Chief Justice of each state should be appointed to the Bench of the High Court. I have in my hand his recommendation.

Mr. WALKER.-He did not say Chief Justices, but Judges.

Mr. HIGGINS.-Yes. Sir Samuel Griffith says it is worthy of consideration whether it might not be wise to empower the Federal Parliament, if they think fit, to make laws authorizing the provisional constitution of the High Court in whole or part by Judges of the state courts. There is that power here. The Executive can, if they think fit, appoint any Judge. I am sure I shall not be misunderstood if I say that there is nothing in the character of the Chief Justices which render them necessarily more fit to be appointed to the High Court than any of the other Judges of the Supreme Court of a state. It is not unfair to remind honorable members that of all the Judges of the states those who are most frequently appointed by political influence are the Chief Justices. It has not, very fortunately, been the ordinary rule of late years; but in England the position of Chief Justice is more of a political appointment than that of any other Judge on the Bench. In these colonies there has been a tendency in the same direction. The Chief Justice is no more fitted merely by virtue of his office to be a Judge of the Federal Court than the Puisne Judges are. There is also this point to be considered: That if the amendment be adopted, until the Constitution is changed-and it takes a great deal to change a Constitution-the Federal Executive will be limited in its choice of Judges to the Chief Justices. It will in this respect be tied hand and foot, no matter what may be the conditions under which any state appoints its Chief Justice. It is quite true, and very happily so, that under the different Constitutions of the different states of Australia it is the practice to appoint the Chief Justice and all Judges of the Supreme Court during good behaviour. But there is nothing to hinder the Judges being made elective, as in America. There is nothing to hinder the tenure of Judges being made for a certain number of years, as in America; and I can only say, from my slight experience of the working of American courts, that I sincerely hope we shall never have our Judges elected. I sincerely hope that we shall give them the strongest tenure, and make them as independent of any man's favour and any man's hate as we possibly can. Therefore, I submit that it would be a dangerous thing for us to limit the discretion of the Federal Executive to the man whom a state might happen to appoint.

Mr. BARTON.-Supposing a state changed its method of appointing Judges, and made them elective? Then you would have an elected Chief Justice in the state, and the Constitution prescribing that he should be a member of the High Court. Would not that destroy all the security we wish to take?

Mr. HIGGINS.-Quite so. I think I included that point in my statement, but [start page 281] it has been put very clearly by the leader of the Convention. You leave the states absolutely free to alter the tenure of their Judges as they like. You leave a state absolutely free to say how long a Judge is to hold his office, and also whether he shall be elected or appointed. All these conditions are left to the state, and is the Federal Executive to be limited-to be tied down hand and foot-to the appointment of whomsoever the state chooses to appoint? In these, as in other matters, I say trust the Federal Parliament, trust the Federal Executive. Let us give, as far as we can, unlimited discretion to it to get the best men, no matter where they may come from. Then there is this point, that to take the Chief Justice of each state would be a grand mistake, for this reason-it would be a mistake to drag the equal representation of states into this matter of the Judiciary. Of course, the Convention has its own view with regard to the equal representation the states in the Parliament, but I think it would be a grand mistake, at all events, to drag that into the question of the Judiciary, where a man has to act as an arbitrator, and not to look at the interests of this person or that person, but to look at what is just and what is the law. Supposing you drag in the Chief Justice of each state, there will be a strong tendency for him to feel himself the representative of his colony, and nothing could be more damaging to the cause of the Federal Court than that. I say he ought to go there wholly indifferent.

Mr. HOWE.-He need not take part.

Mr. HIGGINS.-I say, with all respect, that it would be his duty to take part, as the law had put him there.

Mr. GLYNN.-We could easily provide for that.

Mr. HIGGINS.-I certainly think it would not be right to put the Judges in the position of feeling that they are delegates from the particular states. Then I would ask one thing further. I do not know how it is in the other colonies, but in our courts, at the beginning of the year, the Chief Justice arranges the list and fixes what the work of each Judge will be for each month-Assizes, Criminal Court, Nisi Prius, Full Court, and so on. Now, supposing an urgent application comes on for a mandamus under the original jurisdiction, in which a writ of mandamus or prohibition is sought against the Commonwealth. That class of cases is one which should be dealt with urgently on the moment. There may be many a time when the whole of the machinery of government may depend upon whether the officer of the Commonwealth is to do thing, or to do that. Supposing there is an application under the original jurisdiction for a mandamus or prohibition, are they to wait until they call arrange that all the Chief Justices of the five or six Colonies find a month in which they could sit to hear this application for a mandamus? I feel that here there would be a practical objection, on which I would appeal to business men. Are the delays of the courts to be added to by having the High Court of Australia to wait until they can find Chief Justices able to give a few days to this thing or that thing? A banker, for example, wants to have his cases decided quickly.

Mr. HOWE.-The Judges can go home on twelve months leave of absence when necessary.

Mr. HIGGINS.-I do not understand the honorable member's interjection. At all events we ought not, under the plea of economy-though we ought to regard economy-to commit ourselves to a measure which may injure the efficiency of the court and the rapidity with which the court is to do its work.

Mr. WALKER (New South Wales).-It requires a certain amount of courage for me, as a layman, to speak on a subject of this sort, but as I had the honour of a seat on the Judiciary Committee I presume I am supposed to have looked into this [start page 282] matter. The Privy Council at the present time, I understand, desires to have representatives of the colonies on that body, presuming that such Judges have a special knowledge of colonial law. The Chief Justice of South Australia is a member of Her Majesty's Privy Council, and, I believe, recently sat on the Council. One advantage of having a choice, at all events, of state Judges for the High Court would be the probability of having some person there who would have a special knowledge of the laws of the state in which he resided. I

presume that the High Court will, of course, deal with appeals in connexion with local laws as well as in connexion with constitutional laws. On this subject, however, I again take leave to quote from my honorable friend, Sir Samuel Griffith, who takes a deep interest in this matter. He apparently is with Mr. Glynn in supposing that at first it would be difficult to find sufficient work for this court to do. He says-

I take leave to submit, as a question deserving of serious consideration, whether the work that would fall to a Federal Supreme Court is likely for some years to be sufficient to warrant the immediate creation of a complete separate judicial establishment.

Mr. SYMON.-That was not the opinion he expressed in 1891.

Mr. WALKER.-I am not responsible for his opinion in 1891. I believe it is not unusual for some lawyers to change their opinions according to the side by which they are engaged from day to day.

Mr. BARTON.-You ought to have learnt more than that on the Judiciary Committee.

Mr. WALKER.-Of course, Sir Samuel Griffith admits that-

The arguments in favour of an independent Federal Judiciary are obvious, and are, no doubt, very cogent. It might indeed be necessary-

And I think here we shall agree with him.

to have one or two exclusively Federal Judges to preserve the continuity of the tribunal, and to organize and supervise its machinery.

When the time comes, I trust that Mr. Glynn will slightly amend his proposed amendment, so as to have, at all events, two Judges who are purely Federal Judges, and that temporarily the quorum of Judges necessary may be made up by Judges of the state courts. With regard to the difficulty which my honorable and learned friend (Mr. Higgins) has alluded to of getting representatives from the state courts, that might be obviated by their obtaining leave of absence now and again for three or four months to attend the Sittings of the Federal Judiciary.

Mr. HIGGINS.-How are they to foresee which months they will be wanted in?

Mr. WALKER.-I understand, although not a lawyer, that there are certain vacations-ordinary vacations-and, moreover, that it is not a matter of difficulty, as Mr. Howe interjected just now, for the Judges to obtain leave of absence pretty frequently for one reason or another. Surely then such an important matter as the laws of the Federation would justify the respective Supreme Courts in granting leave of absence. Be that as it may, I agree with Sir John Downer that after a time the matter of expense is not to be considered very greatly. At first, however, it is a very serious matter. Every day we find persons objecting to federation on the ground of expense, and they seem to think, uncharitable people as they are, that the constitution of this Convention, which only includes 24 lawyers out of 50 members, affects, to some extent, our opinion with regard to the necessity for a Federal Judiciary.

Mr. REID.-If the people think that, why did they elect the 24 to the Convention?

Mr. WALKER.-I think that they showed their wisdom in that. I have very great respect for the legal fraternity myself, and I do not wish to speak of them except in the most complimentary manner, but as a layman it is my intention to support Mr. Glynn, if be will amend his amendment in a certain direction. Of course, at present we are not dealing with [start page 283] the whole subject of appeals to the Privy Council. When the time comes to debate that question I shall have an opportunity of saying something more on the subject.

Mr. ISAACS (Victoria).-While we all respect the opinion of Sir Samuel Griffith, we have to act on our own judgment in this matter, and I think our own judgment must tell us that such a proposal as my honorable and learned friend (Mr. Glynn) has made will not bear serious consideration for a moment. It is open to the objection at once that gentlemen representing primarily their own colonies because they do so are to have seats on the Bench. The very statement of that proposition is enough to defeat it. My right honorable and learned friend (Mr. Kingston) said: Why not take the reverse of this proposition, and why have Commonwealth Judges only? Well, sir, what is a Commonwealth Judge? A Judge who has equally dear to him every part of the Commonwealth, and who has no partiality for one part more than another.

Mr. KINGSTON.-He is to prefer the whole to the part, because there may be disputes.

Mr. ISAACS.-Yes, he should prefer the whole as it stands, as he thinks it really is, rather than seek the advantage of any particular part. No one would suspect a Commonwealth Judge of favouring one part of the Commonwealth more than another, and it is for that reason that the whole of Australia would have confidence in him. I can see that there is a question of economy concerned, but I do not think that that question should be countenanced for one moment in this regard. Economy may be very expensive, and in the administration of justice it is altogether too expensive. If there is one moment more than another when a strong Judiciary is needed, in which unbounded confidence is to be placed, such a Judiciary is required for this Commonwealth when the Constitution first comes into operation. We are taking infinite trouble to express what we mean in this Constitution; but as in America so it will be here, that the makers of the Constitution were not merely the Conventions who sat, and the states who ratified their conclusions, but the Judges of the Supreme Court. Marshall, Jay, Storey, and all the rest of the renowned Judges who have pronounced on the Constitution, have had just as much to do in shaping it as the men who sat in the original Conventions. I therefore think that, at the beginning, we should take the utmost care to establish a Judiciary to effectuate the work we are here preparing. I do not think we can guard against everything. I know very well that the Parliament will have an immense power, and we know that the Executive in America, as Mr. Higgins has said, have degraded the influence of the Supreme Court. But that has been done in a way that could not be prevented, and we cannot prevent it here. There will, however, be less reason for it here than in America, and I will tell honorable members why. What was done in the United States? Shortly after the American war there was an issue of United States notes, and the question arose (which was carried to the Supreme Court) whether Congress could make those notes legal tender. It was decided by the bench-not the full bench of nine Judges, because one of them was ill or absent from some other cause-that the notes were not legal tender. The American Constitution-and this is the lesson which we ought to learn-is practically not susceptible to amendment. There was no means whatever of amending the Constitution so as to do what the people and Congress desired, to make the notes legal tender. What was the only way open? It was this. It just happened that a vacancy took place on the Supreme Court Bench, and then Congress passed a Bill adding one to the number of the Supreme Court Judges, and they took very good care to appoint a man to that position Upon whom it was known they could rely. The question was again agitated, and the Supreme Court Bench reversed [start page 284] the former decision. That was one of their ways of amending the American Constitution. I trust we shall remember that instance when we are dealing with clauses relating to the amendment of the Constitution. What I have described was done by the republican party, but the other party cannot claim to be much better in principle. What happened at the last Presidential election? The democrats, knowing the decision of the Supreme Court as to the income tax-a most unfortunate decision, because it says (in accordance no doubt with the Constitution) that direct taxation must be according to population, and not according to the capacity of the individual to bear it-came to the conclusion that they would have to carry their point by altering the Supreme Court, and there was accordingly a proposal in the platform of the democratic party to take the same course as was taken in regard to the United States notes. We cannot prevent Parliament adding to the number of the Judges of the Supreme Court. We can only prescribe a minimum, at all events, so that there shall be a strong guarantee to the Commonwealth, when it comes into operation, that there shall be a bench of such ability as we can secure, and in which we can all place confidence in the fairness and impartiality of its decisions as to

the meaning of this Constitution and every part of it. That duty of course will not end with the first few years of the Federation, but I again say that the proposal of my honorable and learned friend (Mr. Glynn) should not be supported by this Convention.

Mr. LEAKE (Western Australia).-I object to this proposal on two grounds-on the one hand that it is inconvenient, and on the other hand that it is inconsistent. It is inconvenient for this reason: That the Chief Justices of the different colonies are prevented from discharging the duties which devolve upon them in their own various states. Take, for instance, the case of a Judge coming from the remote West. He would have to be away from his local duties for such a considerable time that it must necessarily interfere with the due administration of justice in his own courts. In Western Australia, as also in South Australia, we have three Judges. The Full Court consists of three Judges. And how in these colonies, in the absence of the Chief Justice, could the business of the courts go on? It would have to be suspended during the absence of the Chief Justice. The proposal is inconsistent, I submit, upon this ground-that while the Chief Justices of the colonies are drawing their salaries from their particular states, the Federal Government would not be paying their Judges the full amount of their salaries, but would be asking the states to contribute in that direction. With regard to the question as to insufficiency of work for the Federal Judges, I agree with those honorable members who have ventured to say that there will be ample work from the very commencement for the whole Federal Bench. Moreover, it seems to me that if you place the Federal Judges in the position of ex officio members of the High Court, you will derogate from the dignity of their position. On these grounds I intend to oppose the amendment. It has been said by other members that the choice of the Federal Government is limited. Why should that choice be limited merely to the judicial bench, and not to the bar of Australia? There are honorable members sitting in this House representing New South Wales, Victoria, and South Australia, who are well qualified to adorn the Judicial Bench of Australia.

Mr. REID (New South Wales).-I find that we are discussing one thing, whilst the amendment before the Chair is another. The sooner we get back into some regular practice the better. I would suggest that we should dispose of the amendment before the Convention, which, as I understand, proposes to insert in the beginning of the clause the words "Unless the Parliament otherwise provides." It occurs to me that one of the essential features of [start page 285] this Convention should be a federal judicial power. That is a power that is absolutely necessary, and I shall therefore prefer to vote against the amendment, because the amendment would make the judicial power of the Commonwealth the creature of the Federal Parliament. The clause, as it stands, places the Federal Court in the bed-rock of the Constitution.

The amendment was negatived.

The CHAIRMAN.-I will point out to Mr. Glynn that there is an amendment suggested by the Legislative Council of South Australia to omit all the words from "a," immediately preceding the words "Chief Justice," with a view to the insertion of the words "Judge from the Supreme Court of each state, one of whom shall act as the Chief Justice." I will put the question-That the words proposed by the Legislative Council of South Australia to be inserted, after the word "a," be so inserted. If they are not inserted, then Mr. Glynn can move his amendment.

The amendment was negatived.

The CHAIRMAN.-It is now proposed by Mr. Glynn to insert, after the word "and," in the seventh line of the clause, the following words, "until Parliament shall otherwise provide, the Chief Justices of the states." So that the latter part of the clause will read, if this amendment is carried-

The High Court shall Consist of a Chief Justice, and, until Parliament shall otherwise provide, the Chief Justices of the states.

Question-That the words proposed to be inserted be so inserted-put.

The committee divided-

Ayes ... ... ... ... 9

Noes ... ... ... ... 29

Majority against the amendment 20


Berry, Sir G. Howe, J.H.

Cockburn, Dr. J.A. Kingston, C.C.

Gordon, J.H. Walker, J.T.

Grant, C.H. Teller.

Holder, F.W. Glynn, P.M.


Abbott, Sir J.P. Leake, G.

Braddon, Sir E.N.C. Lee Steere, Sir J.G.

Carruthers. J.H. Lewis, N.E.

Crowder, F.T. McMillan, W.

Deakin, A. O'Connor, R.E.

Dobson, H. Peacock, A.J.

Douglas, A. Quick, Dr. J.

Downer, Sir J.W. Reid, G.H.

Forrest, Sir J. Solomon, V.L.

Fraser, S. Symon, J.H.

Fysh, Sir P 0. Trenwith, W.A.

Hackett, J.W. Turner, Sir G.

Henry, J. Zeal, Sir W.A.

Higgins, H.B. Teller.

James, W.H. Isaacs, I.A.

Question so resolved in the negative.

The CHAIRMAN.-The next amendment, to omit the words "not less than four," is suggested by the Legislative Assembly of New South Wales, the Legislative Assembly of Victoria, and the Legislative Council of Tasmania.

Mr. REID (New South Wales).-I think this is a most sensible amendment, because the effect of the amendment will be that if it be found necessary to have four Judges of the Supreme Court, in addition to the Chief Justice, there would be no difficulty in the way, but it might be, at the beginning of the Commonwealth and for a very long time, that the Chief Justice, with two other Justices, would form a sufficient bench.

Mr. O’CONNOR (New South Wales).-I think that the amendment has a great deal more meaning in it than perhaps the honorable member who has just spoken would suppose. At first I myself was disposed to think that the number of Supreme Court Judges of the Commonwealth might be left in the hand's of the Federal Parliament, but an argument that has been used by Mr. Isaacs just now very strongly points to the conclusion I think, that it is just as important that the minimum number of Judges of the Supreme Court should be fixed as that the court itself should be constituted. The argument in favour of the amendment is simply an argument that it will [start page 286] save expense. I cannot perceive any other argument in favour of it.

Sir JOHN FORREST.-Well, that is a good one.

Mr. O’CONNOR.-It is under certain circumstances, but it all depends upon what price you pay for the money you save, and it may be very dear economy.

Sir JOHN FORREST.-They could always be added to.

Mr. O’CONNOR.-One of the reasons why you wish to place this Constitution upon a foundation which will insure that you will have a tribunal which will equitably and impartially decide between the states, is that that is the guarantee of fairness which each state and each individual has in the foundation of the Constitution. One can quite foresee occasions in which the interpretation of a law-whether it be a state law or whether it be a Commonwealth law-may involve exceedingly high feeling in the states and in the Commonwealth. It may be a matter of the most immense importance to the Commonwealth that a particular law should be decided to be valid. It may be a matter involving political issues of a very grave character, and it may be that the whole question in issue between strong contending parties in the state will have to be decided by a Judge or by the Judges of the Federal Court. One can easily understand that if a decision is given against the view of a strong majority in Parliament, there will be very great temptation to an Executive, in the event of a vacancy occurring, not to fill up that vacancy if, by so doing, it can insure a majority in the court of the states.

Mr. KINGSTON.-Look at it the other way.

Mr. O’CONNOR.-That is exactly the same kind of case which the Attorney-General of Victoria alluded to in the instance he cited in the history of the United States.

Mr. GORDON.-If they can appoint in that way, there is nothing in your argument.

Mr. O’CONNOR.-If they can appoint another Judge undoubtedly, but if, by not appointing a Judge, they can get a majority or an equal number in the court which will decide the question as they wish, there will be a strong temptation on the part of the Federal Government to do that.

Mr. ISAACS.-It is much easier to do that than to appoint another Judge.

Mr. O’CONNOR.-It is much easier to do that which involves not making an appointment, than to make an appointment which will involve an expenditure of money.

Mr. SYMON.-And which will be much more open to criticism.

Mr. O’CONNOR.-It would be obvious to every one that it would be done for one purpose, and that was to secure a particular decision.

Mr. GORDON.-You would have to get a Judge to die first.

Mr. O’CONNOR.-Perhaps this power will have to be carried out in the first instance by the passing of a federal statute which will appoint a certain number of Judges and fix their remuneration. No additional Judge can be appointed without passing a new Act, and the object of passing a new Act will be so obvious that the probabilities are that, except in circumstances of very strong temptation, the Federal Parliament will not pass any such Act; and if it does it will have to be by the concurrence of both Houses of the Federal Parliament. The appointment has to be made by the Executive, and the Executive, representing only the majority in the House of Representatives, may feel so strongly about one of these measures that it may omit to make an appointment, and what is there to force it to make an appointment if these courts are to be constituted of such number of Judges as may be determined? What we should secure in the appointment of the Federal Judiciary is that its constitution shall be certain and, above [start page 287] all things, that its constitution shall be such that neither by any act of commission, nor by any act of omission, it shall be rendered ineffective or warped from its purpose of deciding according to the most absolute right upon all questions of the Constitution. Inasmuch as the only argument in favour of this amendment-that is, the saving of the expense which may be involved in the appointment of one or more extra Judges-is a very weak one, especially when we remember that you will always have just the same vigilant criticism of expenditure in the Federal Parliament as you have in the local Parliament, and you will have just the same strong objection to increasing the number of judicial officers that obtains, and very properly obtains, all through Australia, you can very well trust to that to insure economy; but do not, by carrying an amendment of this sort on the ground that you are effecting an economy, run the great risk of placing in the hands of the Federal Parliament and the federal authority a means of interfering with the courts of justice.

Mr. LEAKE (Western Australia).-I hope that the committee will not accept the amendment. This question was very well thrashed out before the Judiciary Committee. The principal reason which influenced the members of the committee in fixing the minimum of four Judges was that, inasmuch as the Federal Court would really exercise in chief an appellate jurisdiction, it would appear to be inconsistent that by any possibility two Judges of Federal Court should have it in the power to upset the decision of five or seven Judges in a state.

Mr. FRASER.-It is the weight of numbers.

Mr. LEAKE.-I think there is always wisdom in numbers We have been told that very often.

Mr. SYMON.-And there is strength.

Mr. ISAACS.-And safety.

Mr. LEAKE.-I would rather accept the unanimous judgment of seven Judges than the divided judgment of three Judges. For that reason, I think we had far better make this judicial body as powerful as it is possible for us to do. Nobody can say that small matters will first arise. It is quite possible that the first appeal to the Federal Court may be one of first and prime importance, and it is improbable the first decision of the Federal Court can by any possibility give rise to friction or dissatisfaction either in any one of the states or in the Commonwealth. For these reasons I oppose this amendment.

Mr. SYMON (South Australia).-The whole object of this clause is to establish by the Constitution a Federal High Court. If this amendment is carried the result will be that you will have a Federal High Court established without any fixed minimum to constitute the bench. The thing seems to me

perfectly absurd. There may be a difference of opinion as to whether we should have a minimum of two or a minimum of four. That is another thing; but if you wipe this out altogether you may as well wipe out the whole thing. If you are going to establish a court which is going to be symmetrical at all, you must have it constituted in some way or other with a minimum, leaving it, of course, as the exigencies of business require, to be increased by the federal authority empowered to do it.

Mr. HOLDER (South Australia).-I rise to ask you, sir, to put the question on this amendment in such a way that I shall not be precluded afterwards from moving to strike out "four," with a view to insert "two" in lieu thereof. I am not prepared to vote for the amendment now before the committee, but presently I shall desire to substitute the word "two" for the word "four," because I do not agree with the honorable member (Mr. Leake) that the decisions of this court will be the more weighty because of the greater number of Judges of it. I believe that the knowledge of the Judges, their learning, their experience, and the weight of the men [start page 288] themselves, will be the chief factors in the respect paid to any decision of the court.

The CHAIRMAN.-I will put the question in such a form that the proposition as to whether there should be a minimum or not can be decided. The question is-

That the words "not less than" stand part of the question.

Mr. PEACOCK (Victoria).-I hope that this amendment will not be accepted. One of the strongest reasons which prevails in the minds of the public outside for accepting the Federal Constitution is the fact that a strong Federal Court will be established. I am only a lay member of the Convention, but my experience of the Judiciary Committee, and my general reading, have shown me that the liberties of the people as well as of the states may be involved in a decision given by the Federal Court, and anything that would tend to weaken that court would weaken and infringe upon the liberties of the people. We do not know what question may arise to be dealt with by the Federal Court. Although it is popular to play to the gallery with regard to expense, this is too serious a question for expense to be considered by the Convention. The expenditure of a few thousands a year will be nothing if we are able to assure the people of Australia that a strong Federal Court has been provided. We know that the Federal Court of the United States in dealing with the imposition of an income tax occupied such a strong position that they were able to administer the strict letter of the law, as provided by the Constitution. That is the kind of court we should have here.

Mr. HOWE.-But there is no need to be extravagant.

Mr. PEACOCK.-Quite so; but the question of a few thousand pounds ought not to be taken into consideration. When we remember that this Federal Court will have to deal with important matters affecting the liberties of the people, we are all desirous of seeing a strong Federal Court established, and appeals should be decided without incurring the large expenditure which is now involved in the case of appeals to the Privy Council. I am confident the people are desirous of not seeing this provision weakened-that they would rather see it strengthened. I therefore hope the amendment will be rejected.

Sir EDWARD BRADDON (Tasmania).-I cannot see that the amendment will weaken the Federal Court, inasmuch as it does not suggest that the number of Judges should be limited in any way. It only strikes out a limitation which is undesirable at the present time. We talk a great deal about trusting the Federal Parliament and Executive. May we not well trust them to fix upon the number of Judges required in this court in the first instance, to fix upon a number which will be sufficient and necessary, and, I hope, competent to do all the work of appeals? That can be very well done whether we strike out these words and insert nothing else, or whether we strike out the word "four" and insert "two" instead of "one." I shall certainly support the amendment that you, sir, are now going to put, and the retention of the rest of the clause.

Mr. ISAACS (Victoria).-I think it would not be economy-it would be simply parsimony-to cut down the number of Judges. After the fullest consideration that I have now been able to give to the matter, I think it would be a great inducement for the people of the various colonies to accept the Constitution in view of the immense issues at stake in that acceptance, if they know that there is a guarantee to them within the four corners of the Constitution, and that it is beyond the power of the Federal Parliament to alter it, that we shall have a Supreme Court of a certain magnitude and power. Do honorable members who support the amendment consider that if there was a

##### [start page 289] question relating to their state involving, it might be, practically the existence of that state, its power of taxation, its rights over rivers, over territories of various kinds, that they would be more content to have that immense question decided by five Judges than by three-by two it might be? There might be one on either side, and that would mean that the state would have its future position determined under the Constitution of the Federation, and under their own Constitution, by the casting vote of one out of three. I am prepared to believe that the people of these colonies, when they are told that they are committing these vast issues to the Federation, and that the provisions in this Constitution go safeguarded by a Supreme Court of not less than five Judges, will feel an immensely greater amount of confidence in saying "Yes" to the great question which I hope will be soon submitted to them.

Mr. REID(New South Wales).-My honorable friend (Mr. Peacock) spoke of expense as a matter in which we should not play to the gallery; but I can assure the honorable member that the gallery is more interested in the question than any other, because they have to find the money. The gallery may criticize this provision in its present shape in this way. There are a great many allusions made, and perhaps improperly made, as to the number of lawyers in this Convention, and it might be an object of sinister criticism that we should be careful to provide that there shall not be less than four Judges. It might be an observation upon that, that if it is necessary to fix a minimum it is necessary, in order to secure the independence of the court, that there should be a maximum, because you can swamp a court of five if the maximum is left open to the Executive. There might be only perhaps one of a majority in some moment of great political excitement, when, perhaps a burning question would be before the federal tribunal. When we turn to the United states, and the honorable member (Mr. ISAACS) knows better than I do what has happened in that great country in reference to the bench-

Mr. ISAACS.-The only difference is that we can at present judge of our existing requirements, but we cannot tell what will be the future requirements of the Federation.

Mr. REID.-I fancy that it is not always the most numerous bench that is the strongest; it does not follow. I have seen in the law reports some knotty questions referred to a large number of English Judges, perhaps fifteen, and I have found that the decision was given by eight Judges to seven. I do not call that a strong bench, or a strong decision. It is a very weak decision and a very weak bench when the members are divided in that way. The number does not always show the strength of the beach; that would depend upon the individuals upon the beach. Whatever the number way be, whether it is one, three, or six, it strikes me it would be quite possible that, with the Chief Justice and two Judges, we should have a stronger bench than if there were the Chief Justice and four Judges. I mean in the intellectual sense, and in the sense of commanding the approval and confidence of the public. I quite see that it would not do to limit this in any very arbitrary way, but if there is to he a limit on one side there should also be a limit on the other, in the interests of the independence of the bench. Therefore, under the circumstances, I am prepared to vote for an amendment which will fix both the minimum and the maximum. Of course, if the working of the Constitution requires a larger number later on, there is no doubt that would not be a matter of political excitement in the states. A time could be chosen when it would not be, and it ought not to be very difficult to get an amendment of the Constitution on that point. In the great United States there are 70,000,000 people, and it will be a long time before we have such a population. I believe that on constitutional questions the quorum of the United States Federal

[start page 290]

Bench is nine, and on other questions five. If we allow for the development of numerical strength, and if we have a court consisting of the Chief Justice and four other Judges, we will provide a very strong Supreme Court for many years to come.

Mr. HIGGINS.-What words would the honorable member suggest?

Mr. REID.-The present amendment, I believe, is to alter the clause so that it should read "not less than two."

The CHAIRMAN.-The present amendment is to leave out "not less than" so as to decide whether there should be a minimum or not.

Mr. REID.-I am not in favour of such an amendment. I am in favour of an amendment defining a maximum and a minimum. If that fails, I am in favour of having neither a maximum nor a minimum.

Sir JOHN DOWNER (South Australia).-The argument of my right honorable friend (Mr. Reid) is one which has often recommended itself to me when I have held strong views upon a subject, and have felt that the people were against me. I have known the superiority of one man to the many, and the advantage of having a dictator who understands exactly what he wants, and can avoid that appearance of weakness which arises from differences of opinion.

Mr. ISAACS.-Providing he is of your own mind.

Sir JOHN DOWNER.-Of course. The proposal now before the committee is to leave it absolutely to the Federal Parliament to say whether there shall be one Judge or a dozen. As to that, I think my honorable friend and myself are entirely agreed.

Mr. REID.-Cannot the honorable member see the danger of a provision which leaves it open to the Executive to appoint any number of Judges?

Mr. BARTON.-It is not the Executive, but the Parliament, who appoints the Judges.

Sir JOHN DOWNER.-This court, after the establishment of the Constitution, will not merely have to decide as to the relative powers of the state; it will be a Court of Appeal from the Supreme Court of the various states. Those courts may be composed of any number of Judges up to six or more, and I think that an appellate tribunal of two would not, under such circumstances, give satisfactory results. The same argument might be used, in degree, in connexion with any less number. The first thing we have to do is to establish a Supreme Court composed of a sufficient number of Judges to enable the people to place confidence in it. The suggestion of the honorable member (Mr. Holder) was that the number of Judges should be limited to two.

Mr. WALKER.-Not less than two.

Sir JOHN DOWNER.-Well, I think that such a provision would be unsatisfactory upon the face of it. It might be, as the right honorable member (Mr. Reid) put it-that one man might have brains enough for the whole concern. One man might be able to manage the whole Commonwealth better than any number of men could do it, but he would not give satisfaction, because other people would differ from him in opinion. You must have more than one Judge, if not to produce competency, to preserve confidence. The question is, what minimum can we fix? Four is a very low number.

Mr. WALKER.-Four, and a Chief Justice.

Sir JOHN DOWNER.-I think that that is a smaller number than was at first proposed. I think that the original number was seven, and that in Adelaide we reduced it. If we go on in this way we shall reduce the Supreme Court to a condition which I think will be extremely unsatisfactory, so far as the

probability of obtaining the confidence of the people is concerned. There are two propositions before us. The first is to leave this matter to the Commonwealth; and there is a great deal in what the right honorable [start page 291] member (Mr. Reid) said upon this question. If we leave the matter to the Commonwealth we are giving it power to appoint a tribunal which is to decide upon the conflicting claims of the states and the Commonwealth.

Mr. WALKER.-Do you not trust the Commonwealth?

Sir JOHN DOWNER.-Of course we trust the Commonwealth entirely, within the sphere of legislation that we bestow upon them. We trust their discretion absolutely; but when we come to the constitutional question of the legal rights of the Commonwealth we define them by fixed legislation. Otherwise there would be no object in having a Supreme Court to decide between the Commonwealth and the states upon perfectly bona fide questions. We trust the Commonwealth entirely within the limits of the Constitution, and in respect to the exercise of the powers we bestow upon them. But we have two objects. One is to preserve the states, and the other to establish the Commonwealth. Therefore we have a third patty, the Federal Court, which is to have no voice in the exercise of the discretion of either of them, but must decide when either party is acting beyond its constitutional rights. If we establish this body we ought to establish it ourselves. The argument that it is to stand between the Commonwealth and the Parliament is a very powerful argument in support of the contention of the right honorable member (Mr. Reid) that we should establish this body ourselves, and not leave to the Commonwealth the power of frittering away the protection we give by the establishment of this tribunal.

Mr. BARTON.-You must make the Constitution yourself; but you must trust the Commonwealth for legislation within the Constitution. That is what we mean.

Sir JOHN DOWNER.-And that is what I mean.

Mr. REID.-Still you do not leave the Commonwealth the option of saying that there shall be only three Judges.

Sir JOHN DOWNER.-The view which the right honorable member took, though I do not agree with the manner in which he introduced it, had the merit of being absolutely logical. If you have to establish this court fixed and immutable, to stand between the Commonwealth and the states, establish it fixed and immutable, and do not give to the Federal Parliament the power of appointing more Judges than you have nominated. At the same time, I do not think it expedient to adopt this course. I think it would be wiser to leave the provision just as it is. I think that, the proposed number of Judges is certainly not too large.

Sir EDWARD BRADDON.-Not too large as a maximum.

Sir JOHN DOWNER.-You cannot tell.

Mr. REID.-There is no enthusiasm about appointing Judges of the Commonwealth.

Sir JOHN DOWNER.-There is no enthusiasm about appointing Judges anywhere; but when disputes arise between the states, or between a state and the Commonwealth, there will be much enthusiasm in finding out the value of the power which is to decide between them. Under these circumstances I think it well to fix a maximum, and to leave to the development of events the appointment of new Judges, if that becomes necessary. The position of the right honorable member (Mr. Reid) is quite logical. If you follow it to the bitter end, all the arguments in favour of appointing the tribunal and fixing the number of its members point to the necessity of making that number permanent. Still, we have to add to that a little, and, having provided that this number shall be fixed, I think we should leave it to the development of events to decide whether more Judges should be appointed. For my part, I hope the clause will remain as at present. To say that the Commonwealth

can decide as they please would be practically to take away a large proportion of the protection. They might [start page 292] appoint one man to do what they wanted. They might, of course, appoint four men to do what they wanted, but, still there is a certain safety in numbers. I agree with Mr. Reid that, after all, the opinion of one man may be better than the opinion of a dozen but still, in the establishment of our judicial tribunals, we have always found it necessary to appoint Judges in numerical proportion to the importance of the work they have to do. Under these circumstances, I think four is the lowest number we should fix in the first instance.

Mr. MCMILLAN (New South Wales).-As there seems to be some diffidence and modesty on the part of legal members in dealing with a question of this kind, I might be allowed to wind up the debate. It seems to me that the question of expense and of the work to be done ought not to enter into this discussion. We have simply to decide what is the number of Judges that will meet with the confidence of the people of Australia. If I recollect rightly, there was a great deal of discussion on this question before, and Mr Symon, who was the principal member of the Judiciary Committee, had his views altered on that question. It does seem to me, having regard to the momentous matters which this tribunal will have to decide, that we must have: a sufficient number to give that friction of human intellect which is so necessary. Of course, if you get a Marshall as a Chief Justice, and two other men of equal calibre, that might be sufficient, but taking things according to ordinary chances it seems to me that we should require a tribunal of at least five Judges to give complete satisfaction. Furthermore, although this is a court of a peculiar character, I take it there will be cases of different kinds and, although I am not a lawyer, I know that the legal fraternity give their attention to the different views of any subject with which they have to deal. In a tribunal of that kind you would probably have all the varieties of intellect and knowledge necessary. But I doubt whether that would be so if the number of Judges were, less than five. The whole question should rest on the appropriateness of the number, and the legal members of this Convention know how to deal with that point better than the ordinary layman.

Mr. BARTON (New South Wales).-There is a difficulty arising out of this clause which has not yet been pointed out. On the coming into force of this Constitution, it will be necessary to constitute a Federal Court as soon as possible, because there will be business coming to it by way of appeals from other courts, not to speak of the possibility of cases arising under its original jurisdiction, that will have to be attended to. As the clause stands now, the High Court is to consist of a Chief Justice, and so many other Justices not less than four, as Parliament may from time to time prescribe. The question has to be considered whether the Judges, other than the Chief Justice, would not have to be appointed after the passing of a prescriptive law by Parliament. In that case the functions of the Supreme Court, excepting in so far as the Chief Justice could exercise them, would not in the meanwhile come into operation. After the passing of a prescriptive law, the appointments would be made by the Governor-General in Council. This is a difficulty that may arise. Unless it is made clear that the Chief Justice and all the original members of the High Court are to be appointed in the first instance by the Executive, there is a danger of there being no Federal Court, excepting in so far as one man can constitute it, until a law has been passed by the Parliament.

Mr. ISAACS.-At what salary would the one man constitute it?

Mr. BARTON.-It is very hard to say. This is a difficulty that might very well be taken into consideration by the Convention. It has been arranged that we shall adjourn early to-day, and I thought that I might mention this matter, in order that some of my legal colleagues in the [start page 293] Convention might bring their acute intelligence to bear upon it to see if there is not some way in which the Federal Court could be constituted, at as early a period as practicable, of a Chief Justice and some minimum number of Judges.

Mr. ISAACS.-That particular point was noticed by the Victorian Parliament, as will be seen from one of the amendments suggested by them.

Mr. BARTON.-It has not been noticed in the Convention, and it was not noticed in the New South Wales Parliament. It is worthy of attention, because honorable members will see the immense importance of placing the Federal Court in such a position that it will be able to deal with the business that is brought before it at an early period. If that is not done, the business will have to wait until all the preparations are made for a general election, and until Parliament has dealt with other urgent matters and is in a position to pass the necessary Act. In the meantime the cases will either not be brought before the court at all, or those who have them in hand will suffer a denial or a delay of justice.

Mr. ISAACS.-Will the honorable member look at the amendment suggested by the Victorian Parliament in clause 72? It was to insert after "Shall," in sub-section (1), the words "have such qualifications as the Parliament may prescribe and shall."

Mr. BARTON.-That would scarcely touch the difficulty, which is that until Parliament has passed a prescriptive Act no Federal Court can sit.

Mr. ISAACS.-Of course, but the point was under consideration.

Mr. BARTON.-I would suggest to honorable members that we should consider some modification of the clause, with a view of meeting that difficulty. My own view is that some provision should be inserted, by which there could be appointed, as early as possible, the Chief Justice and a minimum number of Puisne Judges-say three-and that that should be the number of the constituted court until Parliament thinks it necessary to make an increase. I throw this out as a suggestion before I move to report progress, because I think we are all interested in seeing that this matter takes proper shape. I beg now to move, Mr. Chairman, that you report progress, and ask leave to sit again.

The motion was agreed to.

Progress was then reported.


The PRESIDENT.-I have to report to the Convention the receipt this afternoon, from the Acting Premier of Queensland (Sir Horace Tozer), of a letter which I will ask the Clerk to read.

The CLERK then read the following letter:-

Chief Secretary's Office,

Brisbane, 25th January, 1898.

Sir,-With reference to my letter of the 29th September last, and to previous correspondence on the subject of the adjournment of the Federal Convention for the purpose of enabling representatives of this colony to take part in its deliberations, I beg now to inform you that, as soon as practicable after the return of the Prime Minister from England, a Bill, of which I enclose a copy herewith for your information, was prepared to provide for the representation of the colony at the Convention. The Bill was introduced, and read a first time, in the Legislative Assembly on the 11th November, and the second reading was moved on the 20th of the same month. An amendment proposed by Mr. G.S. Curtis, junior member for Rockhampton, having for its object the withdrawal of the Bill, was carried by 29 to 27.

The Government, having made a determined endeavour to give effect to the resolution of the Assembly with the result above indicated, did not feel it possible to do anything further in the matter, and it only remains for me to express the sincere regret felt by the Government that their efforts in the cause of federation have not been supported by Parliament.

I have the honour to be,

(For the Chief Secretary) Sir,

Your most obedient humble servant,


The Right Hon. C.C. KINGSTON, P.C.,


Australasian Federal Convention.

[start page 294] Mr. BARTON (New South Wales).-I beg to move that the letter be recorded on the minutes.

Sir JOSEPH ABBOTT (New South Wales).-At an earlier stage I predicted, not only in South Australia but at the Convention in Sydney, that there was no sincerity in the proposals of the Government of Queensland with regard to this question of federation. I pointed out over and over again that the Government of Queensland never submitted a proposal to the Legislature which they could reasonably expect would be accepted by the people of Queensland. It is idle to say that it was on account of the action of Mr. Curtis that the Bill was rejected; the Bill was rejected because the Queensland Government were afraid to trust the people with electing the members of the Convention. If in the earlier stages, after the agreement of the Premiers in Tasmania, the Government of Queensland had taken the same steps to seek the same legislation as the other colonies did, I have not the slightest doubt that they would have been successful with the Parliament of that colony. But what did they propose? They proposed to allow the two Houses to select members to send to the Convention. Naturally enough that was rejected by the people of Queensland. They have never yet made a proposal by which the people of Queensland have been offered an opportunity of selecting their representatives.

Sir JOHN FORREST.-That was done in this Bill.

Sir JOSEPH ABBOTT.-No. I maintain that the Government Bill did not do that. It did not give to the Queensland people that opportunity which Victoria, New South Wales, South Australia, and Tasmania have given to the people of those colonies. I am very pleased to have this opportunity of saying all that I desired to say on a previous occasion. I only hope the leader of the Convention will see his way to send a congratulatory address to Sir Horace Tozer for having written this letter to the Convention.

Mr. WALKER (New South Wales) rose to speak.

Mr. HOWE (South Australia).-Mr. President, I desire to ask you, on a point of order, whether this discussion is in accordance with our standing orders?

The PRESIDENT.-I think the discussion is in order in connexion with the consideration of a communication from the Government of Queensland. It was my duty to bring that communication before the Convention, and it opens the subject.

Mr. WALKER.-With all due respect to my honorable and learned friend (Sir Joseph Abbott), he has evidently spoken under a misapprehension. The very Bill which was defeated was intended to carry out the intention settled upon by the other colonies except Western Australia.


Mr. WALKER.-With regard to making Queensland one constituency, I may point out that any one who knows anything about the politics of Queensland must know that there are three divisions in that colony. At the present time Her Majesty has the prerogative of dividing off from Queensland any portion of it on receiving a petition from the inhabitants; but it came to the knowledge of the representatives of Northern and Central Queensland that if Queensland came into the Convention no separation of Queensland could ever take place unless the Parliament in Brisbane consented, and that is really the reason why-I think very foolishly-the representatives of Northern and Central Queensland opposed the Bill. I believe that the Queensland Government acted honestly in this matter right through. I believe in the honesty of Sir Hugh Nelson. He has not been what you might call a strong federationist, but he is an honorable man, and when he says a thing he means it. I beg, as an old Queenslander, to repudiate the idea that the Queensland Government has acted otherwise than honorably.

[start page 295] Mr. BARTON (New South Wales).-I would like to point out that what has been, urged by Sir Joseph Abbott may be very truthful as comment, but it does not really affect a motion of this kind, because it is our duty to record this matter on the minutes in pursuance of the course which was followed before. We had correspondence from Queensland which asked us to make an adjournment for them, and we acceded to that request, first placing the correspondence on the minutes. It is only in accordance with the fitness of things, therefore, as well as an act of official courtesy, that the Queensland Government should send the communication which has been read, and that we should put that communication on the minutes, in order to make the history of the matter complete. This is the whole object of the motion. For my part, I do not find fault with the action of the Government of Queensland with regard to their Bill. I read the debate on that Bill carefully, and it seemed to arise from the unfortunate inter-provincial divisions which exist in Queensland-not locally defined, but, nevertheless, very strong-that such a course was taken as resulted in the defeat of the Bill. The Ministry themselves offered to listen to a proposal of the kind made by Mr. Curtis if brought forward in committees proposal for the division of the colony into three for purposes of voting. They said they might not vote for that proposal, but, nevertheless, they would accept the amendment if it was carried. They made the fairest possible offer, in my opinion, and it was not their fault that the proposal was not accepted. Of course I have nothing to say with reference to the attitude of the people of Queensland. How far they are in favour of federation will be disclosed when they take a vote on the subject.

The motion was agreed to.

The Convention adjourned at seven minutes past four o'clock, until Monday, 31st January.